G.R. No. 115455 October 30, 1995 ARTURO M. TOLENTINO, petitioner, vs.

THE SECRETARY OF FINANCE and THE COMMISSIONER OF INTERNAL REVENUE, respondents. G.R. No. 115525 October 30, 1995 JUAN T. DAVID, petitioner, vs. TEOFISTO T. GUINGONA, JR., as Executive Secretary; ROBERTO DE OCAMPO, as Secretary of Finance; LIWAYWAY VINZONS-CHATO, as Commissioner of Internal Revenue; and their AUTHORIZED AGENTS OR REPRESENTATIVES, respondents. G.R. No. 115543 October 30, 1995 RAUL S. ROCO and the INTEGRATED BAR OF THE PHILIPPINES, petitioners, vs. THE SECRETARY OF THE DEPARTMENT OF FINANCE; THE COMMISSIONERS OF THE BUREAU OF INTERNAL REVENUE AND BUREAU OF CUSTOMS, respondents. G.R. No. 115544 October 30, 1995 PHILIPPINE PRESS INSTITUTE, INC.; EGP PUBLISHING CO., INC.; KAMAHALAN PUBLISHING CORPORATION; PHILIPPINE JOURNALISTS, INC.; JOSE L. PAVIA; and OFELIA L. DIMALANTA, petitioners, vs. HON. LIWAYWAY V. CHATO, in her capacity as Commissioner of Internal Revenue; HON. TEOFISTO T. GUINGONA, JR., in his capacity as Executive Secretary; and HON. ROBERTO B. DE OCAMPO, in his capacity as Secretary of Finance, respondents. G.R. No. 115754 October 30, 1995 CHAMBER OF REAL ESTATE AND BUILDERS ASSOCIATIONS, INC., (CREBA), petitioner, vs. THE COMMISSIONER OF INTERNAL REVENUE, respondent. G.R. No. 115781 October 30, 1995 KILOSBAYAN, INC., JOVITO R. SALONGA, CIRILO A. RIGOS, ERME CAMBA, EMILIO C. CAPULONG, JR., JOSE T. APOLO, EPHRAIM TENDERO, FERNANDO SANTIAGO, JOSE ABCEDE, CHRISTINE TAN, FELIPE L. GOZON, RAFAEL G. FERNANDO, RAOUL V. VICTORINO, JOSE CUNANAN, QUINTIN S. DOROMAL, MOVEMENT OF ATTORNEYS FOR BROTHERHOOD, INTEGRITY AND NATIONALISM, INC. ("MABINI"), FREEDOM FROM DEBT COALITION, INC., and PHILIPPINE BIBLE SOCIETY, INC. and WIGBERTO TAADA,petitioners, vs. THE EXECUTIVE SECRETARY, THE SECRETARY OF FINANCE, THE COMMISSIONER OF INTERNAL REVENUE and THE COMMISSIONER OF CUSTOMS, respondents. G.R. No. 115852 October 30, 1995

PHILIPPINE AIRLINES, INC., petitioner, vs. THE SECRETARY OF FINANCE and COMMISSIONER OF INTERNAL REVENUE, respondents. G.R. No. 115873 October 30, 1995 COOPERATIVE UNION OF THE PHILIPPINES, petitioner, vs. HON. LIWAYWAY V. CHATO, in her capacity as the Commissioner of Internal Revenue, HON. TEOFISTO T. GUINGONA, JR., in his capacity as Executive Secretary, and HON. ROBERTO B. DE OCAMPO, in his capacity as Secretary of Finance, respondents. G.R. No. 115931 October 30, 1995 PHILIPPINE EDUCATIONAL PUBLISHERS ASSOCIATION, INC. and ASSOCIATION OF PHILIPPINE BOOK SELLERS, petitioners, vs. HON. ROBERTO B. DE OCAMPO, as the Secretary of Finance; HON. LIWAYWAY V. CHATO, as the Commissioner of Internal Revenue; and HON. GUILLERMO PARAYNO, JR., in his capacity as the Commissioner of Customs, respondents. RESOLUTION

MENDOZA, J.: These are motions seeking reconsideration of our decision dismissing the petitions filed in these cases for the declaration of unconstitutionality of R.A. No. 7716, otherwise known as the Expanded Value-Added Tax Law. The motions, of which there are 10 in all, have been filed by the several petitioners in these cases, with the exception of the Philippine Educational Publishers Association, Inc. and the Association of Philippine Booksellers, petitioners in G.R. No. 115931. The Solicitor General, representing the respondents, filed a consolidated comment, to which the Philippine Airlines, Inc., petitioner in G.R. No. 115852, and the Philippine Press Institute, Inc., petitioner in G.R. No. 115544, and Juan T. David, petitioner in G.R. No. 115525, each filed a reply. In turn the Solicitor General filed on June 1, 1995 a rejoinder to the PPI's reply. On June 27, 1995 the matter was submitted for resolution. I. Power of the Senate to propose amendments to revenue bills . Some of the petitioners (Tolentino, Kilosbayan, Inc., Philippine Airlines (PAL), Roco, and Chamber of Real Estate and Builders Association (CREBA)) reiterate previous claims made by them that R.A. No. 7716 did not "originate exclusively" in the House of Representatives as required by Art. VI, 24 of the Constitution. Although they admit that H. No. 11197 was filed in the House of Representatives where it passed three readings and that afterward it was sent to the Senate where after first reading it was referred to the Senate Ways and Means Committee, they complain that the Senate did not pass it on second and third readings. Instead what the Senate did was to pass its own version (S. No. 1630) which it approved on May 24, 1994. Petitioner Tolentino adds that what the Senate committee should have done was to amend H. No. 11197 by striking out the text of the bill and substituting it with the text of

S. No. 1630. That way, it is said, "the bill remains a House bill and the Senate version just becomes the text (only the text) of the House bill." The contention has no merit. The enactment of S. No. 1630 is not the only instance in which the Senate proposed an amendment to a House revenue bill by enacting its own version of a revenue bill. On at least two occasions during the Eighth Congress, the Senate passed its own version of revenue bills, which, in consolidation with House bills earlier passed, became the enrolled bills. These were: R.A. No. 7369 (AN ACT TO AMEND THE OMNIBUS INVESTMENTS CODE OF 1987 BY EXTENDING FROM FIVE (5) YEARS TO TEN YEARS THE PERIOD FOR TAX AND DUTY EXEMPTION AND TAX CREDIT ON CAPITAL EQUIPMENT) which was approved by the President on April 10, 1992. This Act is actually a consolidation of H. No. 34254, which was approved by the House on January 29, 1992, and S. No. 1920, which was approved by the Senate on February 3, 1992. R.A. No. 7549 (AN ACT GRANTING TAX EXEMPTIONS TO WHOEVER SHALL GIVE REWARD TO ANY FILIPINO ATHLETE WINNING A MEDAL IN OLYMPIC GAMES) which was approved by the President on May 22, 1992. This Act is a consolidation of H. No. 22232, which was approved by the House of Representatives on August 2, 1989, and S. No. 807, which was approved by the Senate on October 21, 1991. On the other hand, the Ninth Congress passed revenue laws which were also the result of the consolidation of House and Senate bills. These are the following, with indications of the dates on which the laws were approved by the President and dates the separate bills of the two chambers of Congress were respectively passed: 1. R.A. NO. 7642 AN ACT INCREASING THE PENALTIES FOR TAX EVASION, AMENDING FOR THIS PURPOSE THE PERTINENT SECTIONS OF THE NATIONAL INTERNAL REVENUE CODE (December 28, 1992). House Bill No. 2165, October 5, 1992 Senate Bill No. 32, December 7, 1992 2. R.A. NO. 7643 AN ACT TO EMPOWER THE COMMISSIONER OF INTERNAL REVENUE TO REQUIRE THE PAYMENT OF THE VALUE-ADDED TAX EVERY MONTH AND TO ALLOW LOCAL GOVERNMENT UNITS TO SHARE IN VAT REVENUE, AMENDING FOR THIS PURPOSE CERTAIN SECTIONS OF THE NATIONAL INTERNAL REVENUE CODE (December 28, 1992) House Bill No. 1503, September 3, 1992 Senate Bill No. 968, December 7, 1992 3. R.A. NO. 7646

AN ACT AUTHORIZING THE COMMISSIONER OF INTERNAL REVENUE TO PRESCRIBE THE PLACE FOR PAYMENT OF INTERNAL REVENUE TAXES BY LARGE TAXPAYERS, AMENDING FOR THIS PURPOSE CERTAIN PROVISIONS OF THE NATIONAL INTERNAL REVENUE CODE, AS AMENDED (February 24, 1993) House Bill No. 1470, October 20, 1992 Senate Bill No. 35, November 19, 1992 4. R.A. NO. 7649 AN ACT REQUIRING THE GOVERNMENT OR ANY OF ITS POLITICAL SUBDIVISIONS, INSTRUMENTALITIES OR AGENCIES INCLUDING GOVERNMENT-OWNED OR CONTROLLED CORPORATIONS (GOCCS) TO DEDUCT AND WITHHOLD THE VALUE-ADDED TAX DUE AT THE RATE OF THREE PERCENT (3%) ON GROSS PAYMENT FOR THE PURCHASE OF GOODS AND SIX PERCENT (6%) ON GROSS RECEIPTS FOR SERVICES RENDERED BY CONTRACTORS (April 6, 1993) House Bill No. 5260, January 26, 1993 Senate Bill No. 1141, March 30, 1993 5. R.A. NO. 7656 AN ACT REQUIRING GOVERNMENT-OWNED OR CONTROLLED CORPORATIONS TO DECLARE DIVIDENDS UNDER CERTAIN CONDITIONS TO THE NATIONAL GOVERNMENT, AND FOR OTHER PURPOSES (November 9, 1993) House Bill No. 11024, November 3, 1993 Senate Bill No. 1168, November 3, 1993 6. R.A. NO. 7660 AN ACT RATIONALIZING FURTHER THE STRUCTURE AND ADMINISTRATION OF THE DOCUMENTARY STAMP TAX, AMENDING FOR THE PURPOSE CERTAIN PROVISIONS OF THE NATIONAL INTERNAL REVENUE CODE, AS AMENDED, ALLOCATING FUNDS FOR SPECIFIC PROGRAMS, AND FOR OTHER PURPOSES (December 23, 1993) House Bill No. 7789, May 31, 1993 Senate Bill No. 1330, November 18, 1993 7. R.A. NO. 7717 AN ACT IMPOSING A TAX ON THE SALE, BARTER OR EXCHANGE OF SHARES OF STOCK LISTED AND TRADED THROUGH THE LOCAL STOCK EXCHANGE

OR THROUGH INITIAL PUBLIC OFFERING, AMENDING FOR THE PURPOSE THE NATIONAL INTERNAL REVENUE CODE, AS AMENDED, BY INSERTING A NEW SECTION AND REPEALING CERTAIN SUBSECTIONS THEREOF (May 5, 1994) House Bill No. 9187, November 3, 1993 Senate Bill No. 1127, March 23, 1994 Thus, the enactment of S. No. 1630 is not the only instance in which the Senate, in the exercise of its power to propose amendments to bills required to originate in the House, passed its own version of a House revenue measure. It is noteworthy that, in the particular case of S. No. 1630, petitioners Tolentino and Roco, as members of the Senate, voted to approve it on second and third readings. On the other hand, amendment by substitution, in the manner urged by petitioner Tolentino, concerns a mere matter of form. Petitioner has not shown what substantial difference it would make if, as the Senate actually did in this case, a separate bill like S. No. 1630 is instead enacted as a substitute measure, "taking into Consideration . . . H.B. 11197." Indeed, so far as pertinent, the Rules of the Senate only provide: RULE XXIX AMENDMENTS xxx xxx xxx 68. Not more than one amendment to the original amendment shall be considered. No amendment by substitution shall be entertained unless the text thereof is submitted in writing. Any of said amendments may be withdrawn before a vote is taken thereon. 69. No amendment which seeks the inclusion of a legislative provision foreign to the subject matter of a bill (rider) shall be entertained. xxx xxx xxx 70-A. A bill or resolution shall not be amended by substituting it with another which covers a subject distinct from that proposed in the original bill or resolution. (emphasis added). Nor is there merit in petitioners' contention that, with regard to revenue bills, the Philippine Senate possesses less power than the U.S. Senate because of textual differences between constitutional provisions giving them the power to propose or concur with amendments. Art. I, 7, cl. 1 of the U.S. Constitution reads:

All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with amendments as on other Bills. Art. VI, 24 of our Constitution reads: All appropriation, revenue or tariff bills, bills authorizing increase of the public debt, bills of local application, and private bills shall originate exclusively in the House of Representatives, but the Senate may propose or concur with amendments. The addition of the word "exclusively" in the Philippine Constitution and the decision to drop the phrase "as on other Bills" in the American version, according to petitioners, shows the intention of the framers of our Constitution to restrict the Senate's power to propose amendments to revenue bills. Petitioner Tolentino contends that the word "exclusively" was inserted to modify "originate" and "the words 'as in any other bills' (sic) were eliminated so as to show that these bills were not to be like other bills but must be treated as a special kind." The history of this provision does not support this contention. The supposed indicia of constitutional intent are nothing but the relics of an unsuccessful attempt to limit the power of the Senate. It will be recalled that the 1935 Constitution originally provided for a unicameral National Assembly. When it was decided in 1939 to change to a bicameral legislature, it became necessary to provide for the procedure for lawmaking by the Senate and the House of Representatives. The work of proposing amendments to the Constitution was done by the National Assembly, acting as a constituent assembly, some of whose members, jealous of preserving the Assembly's lawmaking powers, sought to curtail the powers of the proposed Senate. Accordingly they proposed the following provision: All bills appropriating public funds, revenue or tariff bills, bills of local application, and private bills shall originate exclusively in the Assembly, but the Senate may propose or concur with amendments. In case of disapproval by the Senate of any such bills, the Assembly may repass the same by a two-thirds vote of all its members, and thereupon, the bill so repassed shall be deemed enacted and may be submitted to the President for corresponding action. In the event that the Senate should fail to finally act on any such bills, the Assembly may, after thirty days from the opening of the next regular session of the same legislative term, reapprove the same with a vote of two-thirds of all the members of the Assembly. And upon such reapproval, the bill shall be deemed enacted and may be submitted to the President for corresponding action. The special committee on the revision of laws of the Second National Assembly vetoed the proposal. It deleted everything after the first sentence. As rewritten, the proposal was approved by the National Assembly and embodied in Resolution No. 38, as amended by Resolution No. 73. (J. ARUEGO, KNOW YOUR CONSTITUTION 65-66 (1950)). The proposed amendment was submitted to the people and ratified by them in the elections held on June 18, 1940. This is the history of Art. VI, 18 (2) of the 1935 Constitution, from which Art. VI, 24 of the present Constitution was derived. It explains why the word "exclusively" was added to the American text from which the framers of the Philippine Constitution borrowed and why the phrase "as on other Bills" was not copied. Considering the defeat of the proposal, the power of the Senate to propose amendments must be understood to be full, plenary and complete "as on other Bills." Thus, because revenue bills are required to originate exclusively in the House of Representatives, the Senate cannot enact revenue measures of its own without such bills. After a revenue bill is passed and sent over to it by

the House, however, the Senate certainly can pass its own version on the same subject matter. This follows from the coequality of the two chambers of Congress. That this is also the understanding of book authors of the scope of the Senate's power to concur is clear from the following commentaries: The power of the Senate to propose or concur with amendments is apparently without restriction. It would seem that by virtue of this power, the Senate can practically re-write a bill required to come from the House and leave only a trace of the original bill. For example, a general revenue bill passed by the lower house of the United States Congress contained provisions for the imposition of an inheritance tax . This was changed by the Senate into a corporation tax. The amending authority of the Senate was declared by the United States Supreme Court to be sufficiently broad to enable it to make the alteration. [Flint v. Stone Tracy Company, 220 U.S. 107, 55 L. ed. 389]. (L. TAADA AND F. CARREON, POLITICAL LAW OF THE PHILIPPINES 247 (1961)) The above-mentioned bills are supposed to be initiated by the House of Representatives because it is more numerous in membership and therefore also more representative of the people. Moreover, its members are presumed to be more familiar with the needs of the country in regard to the enactment of the legislation involved. The Senate is, however, allowed much leeway in the exercise of its power to propose or concur with amendments to the bills initiated by the House of Representatives. Thus, in one case, a bill introduced in the U.S. House of Representatives was changed by the Senate to make a proposed inheritance tax a corporation tax. It is also accepted practice for the Senate to introduce what is known as an amendment by substitution, which may entirely replace the bill initiated in the House of Representatives. (I. CRUZ, PHILIPPINE POLITICAL LAW 144-145 (1993)). In sum, while Art. VI, 24 provides that all appropriation, revenue or tariff bills, bills authorizing increase of the public debt, bills of local application, and private bills must "originate exclusively in the House of Representatives," it also adds, "but the Senate may propose or concur with amendments." In the exercise of this power, the Senate may propose an entirely new bill as a substitute measure. As petitioner Tolentino states in a high school text, a committee to which a bill is referred may do any of the following: (1) to endorse the bill without changes; (2) to make changes in the bill omitting or adding sections or altering its language; (3) to make and endorse an entirely new bill as a substitute, in which case it will be known as a committee bill; or (4) to make no report at all. (A. TOLENTINO, THE GOVERNMENT OF THE PHILIPPINES 258 (1950)) To except from this procedure the amendment of bills which are required to originate in the House by prescribing that the number of the House bill and its other parts up to the enacting clause must be

preserved although the text of the Senate amendment may be incorporated in place of the original body of the bill is to insist on a mere technicality. At any rate there is no rule prescribing this form. S. No. 1630, as a substitute measure, is therefore as much an amendment of H. No. 11197 as any which the Senate could have made. II. S. No. 1630 a mere amendment of H. No. 11197. Petitioners' basic error is that they assume that S. No. 1630 is an independent and distinct bill. Hence their repeated references to its certification that it was passed by the Senate "in substitution of S.B. No. 1129, taking into consideration P.S. Res. No. 734 and H.B. No. 11197," implying that there is something substantially different between the reference to S. No. 1129 and the reference to H. No. 11197. From this premise, they conclude that R.A. No. 7716 originated both in the House and in the Senate and that it is the product of two "half-baked bills because neither H. No. 11197 nor S. No. 1630 was passed by both houses of Congress." In point of fact, in several instances the provisions of S. No. 1630, clearly appear to be mere amendments of the corresponding provisions of H. No. 11197. The very tabular comparison of the provisions of H. No. 11197 and S. No. 1630 attached as Supplement A to the basic petition of petitioner Tolentino, while showing differences between the two bills, at the same time indicates that the provisions of the Senate bill were precisely intended to be amendments to the House bill. Without H. No. 11197, the Senate could not have enacted S. No. 1630. Because the Senate bill was a mere amendment of the House bill, H. No. 11197 in its original form did not have to pass the Senate on second and three readings. It was enough that after it was passed on first reading it was referred to the Senate Committee on Ways and Means. Neither was it required that S. No. 1630 be passed by the House of Representatives before the two bills could be referred to the Conference Committee. There is legislative precedent for what was done in the case of H. No. 11197 and S. No. 1630. When the House bill and Senate bill, which became R.A. No. 1405 (Act prohibiting the disclosure of bank deposits), were referred to a conference committee, the question was raised whether the two bills could be the subject of such conference, considering that the bill from one house had not been passed by the other and vice versa. As Congressman Duran put the question: MR. DURAN. Therefore, I raise this question of order as to procedure: If a House bill is passed by the House but not passed by the Senate, and a Senate bill of a similar nature is passed in the Senate but never passed in the House, can the two bills be the subject of a conference, and can a law be enacted from these two bills ? I understand that the Senate bill in this particular instance does not refer to investments in government securities, whereas the bill in the House, which was introduced by the Speaker, covers two subject matters: not only investigation of deposits in banks but also investigation of investments in government securities. Now, since the two bills differ in their subject matter, I believe that no law can be enacted. Ruling on the point of order raised, the chair (Speaker Jose B. Laurel, Jr.) said: THE SPEAKER. The report of the conference committee is in order. It is precisely in cases like this where a conference should be had. If the House bill had been approved by the Senate, there would have been no need of a conference; but precisely because the Senate passed another bill on the same subject matter , the conference committee had to be created, and we are now considering the report of that committee.

(2 CONG. REC. NO. 13, July 27, 1955, pp. 3841-42 (emphasis added)) III. The President's certification. The fallacy in thinking that H. No. 11197 and S. No. 1630 are distinct and unrelated measures also accounts for the petitioners' (Kilosbayan's and PAL's) contention that because the President separately certified to the need for the immediate enactment of these measures, his certification was ineffectual and void. The certification had to be made of the version of the same revenue bill which at the momentwas being considered. Otherwise, to follow petitioners' theory, it would be necessary for the President to certify as many bills as are presented in a house of Congress even though the bills are merely versions of the bill he has already certified. It is enough that he certifies the bill which, at the time he makes the certification, is under consideration. Since on March 22, 1994 the Senate was considering S. No. 1630, it was that bill which had to be certified. For that matter on June 1, 1993 the President had earlier certified H. No. 9210 for immediate enactment because it was the one which at that time was being considered by the House. This bill was later substituted, together with other bills, by H. No. 11197. As to what Presidential certification can accomplish, we have already explained in the main decision that the phrase "except when the President certifies to the necessity of its immediate enactment, etc." in Art. VI, 26 (2) qualifies not only the requirement that "printed copies [of a bill] in its final form [must be] distributed to the members three days before its passage" but also the requirement that before a bill can become a law it must have passed "three readings on separate days." There is not only textual support for such construction but historical basis as well. Art. VI, 21 (2) of the 1935 Constitution originally provided: (2) No bill shall be passed by either House unless it shall have been printed and copies thereof in its final form furnished its Members at least three calendar days prior to its passage, except when the President shall have certified to the necessity of its immediate enactment. Upon the last reading of a bill, no amendment thereof shall be allowed and the question upon its passage shall be taken immediately thereafter, and the yeas and nays entered on the Journal. When the 1973 Constitution was adopted, it was provided in Art. VIII, 19 (2): (2) No bill shall become a law unless it has passed three readings on separate days, and printed copies thereof in its final form have been distributed to the Members three days before its passage, except when the Prime Minister certifies to the necessity of its immediate enactment to meet a public calamity or emergency. Upon the last reading of a bill, no amendment thereto shall be allowed, and the vote thereon shall be taken immediately thereafter, and the yeas and nays entered in the Journal. This provision of the 1973 document, with slight modification, was adopted in Art. VI, 26 (2) of the present Constitution, thus: (2) No bill passed by either House shall become a law unless it has passed three readings on separate days, and printed copies thereof in its final form have been distributed to its Members three days before its passage, except when the President certifies to the necessity of its immediate enactment to meet a public calamity or emergency. Upon the last reading of a bill, no amendment thereto shall be allowed, and the vote thereon shall be taken immediately thereafter, and the yeasand nays entered in the Journal.

The exception is based on the prudential consideration that if in all cases three readings on separate days are required and a bill has to be printed in final form before it can be passed, the need for a law may be rendered academic by the occurrence of the very emergency or public calamity which it is meant to address. Petitioners further contend that a "growing budget deficit" is not an emergency, especially in a country like the Philippines where budget deficit is a chronic condition. Even if this were the case, an enormous budget deficit does not make the need for R.A. No. 7716 any less urgent or the situation calling for its enactment any less an emergency. Apparently, the members of the Senate (including some of the petitioners in these cases) believed that there was an urgent need for consideration of S. No. 1630, because they responded to the call of the President by voting on the bill on second and third readings on the same day. While the judicial department is not bound by the Senate's acceptance of the President's certification, the respect due coequal departments of the government in matters committed to them by the Constitution and the absence of a clear showing of grave abuse of discretion caution a stay of the judicial hand. At any rate, we are satisfied that S. No. 1630 received thorough consideration in the Senate where it was discussed for six days. Only its distribution in advance in its final printed form was actually dispensed with by holding the voting on second and third readings on the same day (March 24, 1994). Otherwise, sufficient time between the submission of the bill on February 8, 1994 on second reading and its approval on March 24, 1994 elapsed before it was finally voted on by the Senate on third reading. The purpose for which three readings on separate days is required is said to be two-fold: (1) to inform the members of Congress of what they must vote on and (2) to give them notice that a measure is progressing through the enacting process, thus enabling them and others interested in the measure to prepare their positions with reference to it. (1 J. G. SUTHERLAND, STATUTES AND STATUTORY CONSTRUCTION 10.04, p. 282 (1972)). These purposes were substantially achieved in the case of R.A. No. 7716. IV. Power of Conference Committee. It is contended (principally by Kilosbayan, Inc. and the Movement of Attorneys for Brotherhood, Integrity and Nationalism, Inc. (MABINI)) that in violation of the constitutional policy of full public disclosure and the people's right to know (Art. II, 28 and Art. III, 7) the Conference Committee met for two days in executive session with only the conferees present. As pointed out in our main decision, even in the United States it was customary to hold such sessions with only the conferees and their staffs in attendance and it was only in 1975 when a new rule was adopted requiring open sessions. Unlike its American counterpart, the Philippine Congress has not adopted a rule prescribing open hearings for conference committees. It is nevertheless claimed that in the United States, before the adoption of the rule in 1975, at least staff members were present. These were staff members of the Senators and Congressmen, however, who may be presumed to be their confidential men, not stenographers as in this case who on the last two days of the conference were excluded. There is no showing that the conferees themselves did not take notes of their proceedings so as to give petitioner Kilosbayan basis for claiming that even in secret diplomatic negotiations involving state interests, conferees keep notes of their meetings. Above all, the public's right to know was fully served because the Conference Committee in this case submitted a report showing the changes made on the differing versions of the House and the Senate.

Petitioners cite the rules of both houses which provide that conference committee reports must contain "a detailed, sufficiently explicit statement of the changes in or other amendments." These changes are shown in the bill attached to the Conference Committee Report. The members of both houses could thus ascertain what changes had been made in the original bills without the need of a statement detailing the changes. The same question now presented was raised when the bill which became R.A. No. 1400 (Land Reform Act of 1955) was reported by the Conference Committee. Congressman Bengzon raised a point of order. He said: MR. BENGZON. My point of order is that it is out of order to consider the report of the conference committee regarding House Bill No. 2557 by reason of the provision of Section 11, Article XII, of the Rules of this House which provides specifically that the conference report must be accompanied by a detailed statement of the effects of the amendment on the bill of the House. This conference committee report is not accompanied by that detailed statement, Mr. Speaker. Therefore it is out of order to consider it. Petitioner Tolentino, then the Majority Floor Leader, answered: MR. TOLENTINO. Mr. Speaker, I should just like to say a few words in connection with the point of order raised by the gentleman from Pangasinan. There is no question about the provision of the Rule cited by the gentleman from Pangasinan, but this provision applies to those cases where only portions of the bill have been amended. In this case before us an entire bill is presented; therefore, it can be easily seen from the reading of the bill what the provisions are . Besides, this procedure has been an established practice. After some interruption, he continued: MR. TOLENTINO. As I was saying, Mr. Speaker, we have to look into the reason for the provisions of the Rules, and the reason for the requirement in the provision cited by the gentleman from Pangasinan is when there are only certain words or phrases inserted in or deleted from the provisions of the bill included in the conference report, and we cannot understand what those words and phrases mean and their relation to the bill. In that case, it is necessary to make a detailed statement on how those words and phrases will affect the bill as a whole ; but when the entire bill itself is copied verbatim in the conference report, that is not necessary . So when the reason for the Rule does not exist, the Rule does not exist. (2 CONG. REC. NO. 2, p. 4056. (emphasis added)) Congressman Tolentino was sustained by the chair. The record shows that when the ruling was appealed, it was upheld by viva voce and when a division of the House was called, it was sustained by a vote of 48 to 5. (Id., p. 4058) Nor is there any doubt about the power of a conference committee to insert new provisions as long as these are germane to the subject of the conference. As this Court held in Philippine Judges Association v. Prado, 227 SCRA 703 (1993), in an opinion written by then Justice Cruz, the

jurisdiction of the conference committee is not limited to resolving differences between the Senate and the House. It may propose an entirely new provision. What is important is that its report is subsequently approved by the respective houses of Congress. This Court ruled that it would not entertain allegations that, because new provisions had been added by the conference committee, there was thereby a violation of the constitutional injunction that "upon the last reading of a bill, no amendment thereto shall be allowed." Applying these principles, we shall decline to look into the petitioners' charges that an amendment was made upon the last reading of the bill that eventually became R.A. No. 7354 and that copiesthereof in its final form were not distributed among the members of each House. Both the enrolled bill and the legislative journals certify that the measure was duly enacted i.e., in accordance with Article VI, Sec. 26 (2) of the Constitution. We are bound by such official assurances from a coordinate department of the government, to which we owe, at the very least, a becoming courtesy. (Id. at 710. (emphasis added)) It is interesting to note the following description of conference committees in the Philippines in a 1979 study: Conference committees may be of two types: free or instructed. These committees may be given instructions by their parent bodies or they may be left without instructions. Normally the conference committees are without instructions, and this is why they are often critically referred to as "the little legislatures." Once bills have been sent to them, the conferees have almost unlimited authority to change the clauses of the bills and in fact sometimes introduce new measures that were not in the original legislation. No minutes are kept, and members' activities on conference committees are difficult to determine. One congressman known for his idealism put it this way: "I killed a bill on export incentives for my interest group [copra] in the conference committee but I could not have done so anywhere else." The conference committee submits a report to both houses, and usually it is accepted. If the report is not accepted, then the committee is discharged and new members are appointed. (R. Jackson, Committees in the Philippine Congress, in COMMITTEES AND LEGISLATURES: A COMPARATIVE ANALYSIS 163 (J. D. LEES AND M. SHAW, eds.)). In citing this study, we pass no judgment on the methods of conference committees. We cite it only to say that conference committees here are no different from their counterparts in the United States whose vast powers we noted in Philippine Judges Association v. Prado, supra. At all events, under Art. VI, 16(3) each house has the power "to determine the rules of its proceedings," including those of its committees. Any meaningful change in the method and procedures of Congress or its committees must therefore be sought in that body itself. V. The titles of S. No. 1630 and H. No. 11197. PAL maintains that R.A. No. 7716 violates Art. VI, 26 (1) of the Constitution which provides that "Every bill passed by Congress shall embrace only one subject which shall be expressed in the title thereof." PAL contends that the amendment of its franchise by the withdrawal of its exemption from the VAT is not expressed in the title of the law. Pursuant to 13 of P.D. No. 1590, PAL pays a franchise tax of 2% on its gross revenue "in lieu of all other taxes, duties, royalties, registration, license and other fees and charges of any kind, nature, or

description, imposed, levied, established, assessed or collected by any municipal, city, provincial or national authority or government agency, now or in the future." PAL was exempted from the payment of the VAT along with other entities by 103 of the National Internal Revenue Code, which provides as follows: 103. Exempt transactions. The following shall be exempt from the value-added tax: xxx xxx xxx (q) Transactions which are exempt under special laws or international agreements to which the Philippines is a signatory. R.A. No. 7716 seeks to withdraw certain exemptions, including that granted to PAL, by amending 103, as follows: 103. Exempt transactions. The following shall be exempt from the value-added tax: xxx xxx xxx (q) Transactions which are exempt under special laws, except those granted under Presidential Decree Nos. 66, 529, 972, 1491, 1590. . . . The amendment of 103 is expressed in the title of R.A. No. 7716 which reads: AN ACT RESTRUCTURING THE VALUE-ADDED TAX (VAT) SYSTEM, WIDENING ITS TAX BASE AND ENHANCING ITS ADMINISTRATION, AND FOR THESE PURPOSES AMENDING AND REPEALING THE RELEVANT PROVISIONS OF THE NATIONAL INTERNAL REVENUE CODE, AS AMENDED, AND FOR OTHER PURPOSES. By stating that R.A. No. 7716 seeks to "[RESTRUCTURE] THE VALUE-ADDED TAX (VAT) SYSTEM [BY] WIDENING ITS TAX BASE AND ENHANCING ITS ADMINISTRATION, AND FOR THESE PURPOSES AMENDING AND REPEALING THE RELEVANT PROVISIONS OF THE NATIONAL INTERNAL REVENUE CODE, AS AMENDED AND FOR OTHER PURPOSES," Congress thereby clearly expresses its intention to amend any provision of the NIRC which stands in the way of accomplishing the purpose of the law. PAL asserts that the amendment of its franchise must be reflected in the title of the law by specific reference to P.D. No. 1590. It is unnecessary to do this in order to comply with the constitutional requirement, since it is already stated in the title that the law seeks to amend the pertinent provisions of the NIRC, among which is 103(q), in order to widen the base of the VAT. Actually, it is the bill which becomes a law that is required to express in its title the subject of legislation. The titles of H. No. 11197 and S. No. 1630 in fact specifically referred to 103 of the NIRC as among the provisions sought to be amended. We are satisfied that sufficient notice had been given of the pendency of these bills in Congress before they were enacted into what is now R.A. No. 7716.

In Philippine Judges Association v. Prado, supra, a similar argument as that now made by PAL was rejected. R.A. No. 7354 is entitled AN ACT CREATING THE PHILIPPINE POSTAL CORPORATION, DEFINING ITS POWERS, FUNCTIONS AND RESPONSIBILITIES, PROVIDING FOR REGULATION OF THE INDUSTRY AND FOR OTHER PURPOSES CONNECTED THEREWITH. It contained a provision repealing all franking privileges. It was contended that the withdrawal of franking privileges was not expressed in the title of the law. In holding that there was sufficient description of the subject of the law in its title, including the repeal of franking privileges, this Court held: To require every end and means necessary for the accomplishment of the general objectives of the statute to be expressed in its title would not only be unreasonable but would actually render legislation impossible. [Cooley, Constitutional Limitations, 8th Ed., p. 297] As has been correctly explained: The details of a legislative act need not be specifically stated in its title, but matter germane to the subject as expressed in the title, and adopted to the accomplishment of the object in view, may properly be included in the act. Thus, it is proper to create in the same act the machinery by which the act is to be enforced, to prescribe the penalties for its infraction, and to remove obstacles in the way of its execution. If such matters are properly connected with the subject as expressed in the title, it is unnecessary that they should also have special mention in the title. (Southern Pac. Co. v. Bartine, 170 Fed. 725) (227 SCRA at 707-708) VI. Claims of press freedom and religious liberty . We have held that, as a general proposition, the press is not exempt from the taxing power of the State and that what the constitutional guarantee of free press prohibits are laws which single out the press or target a group belonging to the press for special treatment or which in any way discriminate against the press on the basis of the content of the publication, and R.A. No. 7716 is none of these. Now it is contended by the PPI that by removing the exemption of the press from the VAT while maintaining those granted to others, the law discriminates against the press. At any rate, it is averred, "even nondiscriminatory taxation of constitutionally guaranteed freedom is unconstitutional." With respect to the first contention, it would suffice to say that since the law granted the press a privilege, the law could take back the privilege anytime without offense to the Constitution. The reason is simple: by granting exemptions, the State does not forever waive the exercise of its sovereign prerogative. Indeed, in withdrawing the exemption, the law merely subjects the press to the same tax burden to which other businesses have long ago been subject. It is thus different from the tax involved in the cases invoked by the PPI. The license tax in Grosjean v. American Press Co., 297 U.S. 233, 80 L. Ed. 660 (1936) was found to be discriminatory because it was laid on the gross advertising receipts only of newspapers whose weekly circulation was over 20,000, with the result that the tax applied only to 13 out of 124 publishers in Louisiana. These large papers were critical of Senator Huey Long who controlled the state legislature which enacted the license tax. The censorial motivation for the law was thus evident.

On the other hand, in Minneapolis Star & Tribune Co. v. Minnesota Comm'r of Revenue, 460 U.S. 575, 75 L. Ed. 2d 295 (1983), the tax was found to be discriminatory because although it could have been made liable for the sales tax or, in lieu thereof, for the use tax on the privilege of using, storing or consuming tangible goods, the press was not. Instead, the press was exempted from both taxes. It was, however, later made to pay a special use tax on the cost of paper and ink which made these items "the only items subject to the use tax that were component of goods to be sold at retail." The U.S. Supreme Court held that the differential treatment of the press "suggests that the goal of regulation is not related to suppression of expression, and such goal is presumptively unconstitutional." It would therefore appear that even a law that favors the press is constitutionally suspect. (See the dissent of Rehnquist, J. in that case) Nor is it true that only two exemptions previously granted by E.O. No. 273 are withdrawn "absolutely and unqualifiedly" by R.A. No. 7716. Other exemptions from the VAT, such as those previously granted to PAL, petroleum concessionaires, enterprises registered with the Export Processing Zone Authority, and many more are likewise totally withdrawn, in addition to exemptions which are partially withdrawn, in an effort to broaden the base of the tax. The PPI says that the discriminatory treatment of the press is highlighted by the fact that transactions, which are profit oriented, continue to enjoy exemption under R.A. No. 7716. An enumeration of some of these transactions will suffice to show that by and large this is not so and that the exemptions are granted for a purpose. As the Solicitor General says, such exemptions are granted, in some cases, to encourage agricultural production and, in other cases, for the personal benefit of the end-user rather than for profit. The exempt transactions are: (a) Goods for consumption or use which are in their original state (agricultural, marine and forest products, cotton seeds in their original state, fertilizers, seeds, seedlings, fingerlings, fish, prawn livestock and poultry feeds) and goods or services to enhance agriculture (milling of palay, corn, sugar cane and raw sugar, livestock, poultry feeds, fertilizer, ingredients used for the manufacture of feeds). (b) Goods used for personal consumption or use (household and personal effects of citizens returning to the Philippines) or for professional use, like professional instruments and implements, by persons coming to the Philippines to settle here. (c) Goods subject to excise tax such as petroleum products or to be used for manufacture of petroleum products subject to excise tax and services subject to percentage tax. (d) Educational services, medical, dental, hospital and veterinary services, and services rendered under employer-employee relationship. (e) Works of art and similar creations sold by the artist himself. (f) Transactions exempted under special laws, or international agreements. (g) Export-sales by persons not VAT-registered. (h) Goods or services with gross annual sale or receipt not exceeding P500,000.00. (Respondents' Consolidated Comment on the Motions for Reconsideration, pp. 5860)

The PPI asserts that it does not really matter that the law does not discriminate against the press because "even nondiscriminatory taxation on constitutionally guaranteed freedom is unconstitutional." PPI cites in support of this assertion the following statement in Murdock v. Pennsylvania, 319 U.S. 105, 87 L. Ed. 1292 (1943): The fact that the ordinance is "nondiscriminatory" is immaterial. The protection afforded by the First Amendment is not so restricted. A license tax certainly does not acquire constitutional validity because it classifies the privileges protected by the First Amendment along with the wares and merchandise of hucksters and peddlers and treats them all alike. Such equality in treatment does not save the ordinance. Freedom of press, freedom of speech, freedom of religion are in preferred position. The Court was speaking in that case of a license tax, which, unlike an ordinary tax, is mainly for regulation. Its imposition on the press is unconstitutional because it lays a prior restraint on the exercise of its right. Hence, although its application to others, such those selling goods, is valid, its application to the press or to religious groups, such as the Jehovah's Witnesses, in connection with the latter's sale of religious books and pamphlets, is unconstitutional. As the U.S. Supreme Court put it, "it is one thing to impose a tax on income or property of a preacher. It is quite another thing to exact a tax on him for delivering a sermon." A similar ruling was made by this Court in American Bible Society v. City of Manila, 101 Phil. 386 (1957) which invalidated a city ordinance requiring a business license fee on those engaged in the sale of general merchandise. It was held that the tax could not be imposed on the sale of bibles by the American Bible Society without restraining the free exercise of its right to propagate. The VAT is, however, different. It is not a license tax. It is not a tax on the exercise of a privilege, much less a constitutional right. It is imposed on the sale, barter, lease or exchange of goods or properties or the sale or exchange of services and the lease of properties purely for revenue purposes. To subject the press to its payment is not to burden the exercise of its right any more than to make the press pay income tax or subject it to general regulation is not to violate its freedom under the Constitution. Additionally, the Philippine Bible Society, Inc. claims that although it sells bibles, the proceeds derived from the sales are used to subsidize the cost of printing copies which are given free to those who cannot afford to pay so that to tax the sales would be to increase the price, while reducing the volume of sale. Granting that to be the case, the resulting burden on the exercise of religious freedom is so incidental as to make it difficult to differentiate it from any other economic imposition that might make the right to disseminate religious doctrines costly. Otherwise, to follow the petitioner's argument, to increase the tax on the sale of vestments would be to lay an impermissible burden on the right of the preacher to make a sermon. On the other hand the registration fee of P1,000.00 imposed by 107 of the NIRC, as amended by 7 of R.A. No. 7716, although fixed in amount, is really just to pay for the expenses of registration and enforcement of provisions such as those relating to accounting in 108 of the NIRC. That the PBS distributes free bibles and therefore is not liable to pay the VAT does not excuse it from the payment of this fee because it also sells some copies. At any rate whether the PBS is liable for the VAT must be decided in concrete cases, in the event it is assessed this tax by the Commissioner of Internal Revenue. VII. Alleged violations of the due process, equal protection and contract clauses and the rule on taxation. CREBA asserts that R.A. No. 7716 (1) impairs the obligations of contracts, (2) classifies

transactions as covered or exempt without reasonable basis and (3) violates the rule that taxes should be uniform and equitable and that Congress shall "evolve a progressive system of taxation." With respect to the first contention, it is claimed that the application of the tax to existing contracts of the sale of real property by installment or on deferred payment basis would result in substantial increases in the monthly amortizations to be paid because of the 10% VAT. The additional amount, it is pointed out, is something that the buyer did not anticipate at the time he entered into the contract. The short answer to this is the one given by this Court in an early case: "Authorities from numerous sources are cited by the plaintiffs, but none of them show that a lawful tax on a new subject, or an increased tax on an old one, interferes with a contract or impairs its obligation, within the meaning of the Constitution. Even though such taxation may affect particular contracts, as it may increase the debt of one person and lessen the security of another, or may impose additional burdens upon one class and release the burdens of another, still the tax must be paid unless prohibited by the Constitution, nor can it be said that it impairs the obligation of any existing contract in its true legal sense." (La Insular v. Machuca Go-Tauco and Nubla Co-Siong, 39 Phil. 567, 574 (1919)). Indeed not only existing laws but also "the reservation of the essential attributes of sovereignty , is . . . read into contracts as a postulate of the legal order." (Philippine-American Life Ins. Co. v. Auditor General, 22 SCRA 135, 147 (1968)) Contracts must be understood as having been made in reference to the possible exercise of the rightful authority of the government and no obligation of contract can extend to the defeat of that authority. (Norman v. Baltimore and Ohio R.R., 79 L. Ed. 885 (1935)). It is next pointed out that while 4 of R.A. No. 7716 exempts such transactions as the sale of agricultural products, food items, petroleum, and medical and veterinary services, it grants no exemption on the sale of real property which is equally essential. The sale of real property for socialized and low-cost housing is exempted from the tax, but CREBA claims that real estate transactions of "the less poor," i.e., the middle class, who are equally homeless, should likewise be exempted. The sale of food items, petroleum, medical and veterinary services, etc., which are essential goods and services was already exempt under 103, pars. (b) (d) (1) of the NIRC before the enactment of R.A. No. 7716. Petitioner is in error in claiming that R.A. No. 7716 granted exemption to these transactions, while subjecting those of petitioner to the payment of the VAT. Moreover, there is a difference between the "homeless poor" and the "homeless less poor" in the example given by petitioner, because the second group or middle class can afford to rent houses in the meantime that they cannot yet buy their own homes. The two social classes are thus differently situated in life. "It is inherent in the power to tax that the State be free to select the subjects of taxation, and it has been repeatedly held that 'inequalities which result from a singling out of one particular class for taxation, or exemption infringe no constitutional limitation.'" (Lutz v. Araneta, 98 Phil. 148, 153 (1955). Accord, City of Baguio v. De Leon, 134 Phil. 912 (1968); Sison, Jr. v. Ancheta, 130 SCRA 654, 663 (1984); Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v. Tan, 163 SCRA 371 (1988)). Finally, it is contended, for the reasons already noted, that R.A. No. 7716 also violates Art. VI, 28(1) which provides that "The rule of taxation shall be uniform and equitable. The Congress shall evolve a progressive system of taxation." Equality and uniformity of taxation means that all taxable articles or kinds of property of the same class be taxed at the same rate. The taxing power has the authority to make reasonable and natural classifications for purposes of taxation. To satisfy this requirement it is enough that the statute or ordinance applies equally to all persons, forms and corporations placed in similar situation. (City of Baguio v. De Leon, supra; Sison, Jr. v. Ancheta, supra)

Indeed, the VAT was already provided in E.O. No. 273 long before R.A. No. 7716 was enacted. R.A. No. 7716 merely expands the base of the tax. The validity of the original VAT Law was questioned in Kapatiran ng Naglilingkod sa Pamahalaan ng Pilipinas, Inc . v. Tan, 163 SCRA 383 (1988) on grounds similar to those made in these cases, namely, that the law was "oppressive, discriminatory, unjust and regressive in violation of Art. VI, 28(1) of the Constitution." (At 382) Rejecting the challenge to the law, this Court held: As the Court sees it, EO 273 satisfies all the requirements of a valid tax. It is uniform. ... The sales tax adopted in EO 273 is applied similarly on all goods and services sold to the public, which are not exempt, at the constant rate of 0% or 10%. The disputed sales tax is also equitable. It is imposed only on sales of goods or services by persons engaged in business with an aggregate gross annual sales exceeding P200,000.00. Small corner sari-sari stores are consequently exempt from its application. Likewise exempt from the tax are sales of farm and marine products, so that the costs of basic food and other necessities, spared as they are from the incidence of the VAT, are expected to be relatively lower and within the reach of the general public. (At 382-383) The CREBA claims that the VAT is regressive. A similar claim is made by the Cooperative Union of the Philippines, Inc. (CUP), while petitioner Juan T. David argues that the law contravenes the mandate of Congress to provide for a progressive system of taxation because the law imposes a flat rate of 10% and thus places the tax burden on all taxpayers without regard to their ability to pay. The Constitution does not really prohibit the imposition of indirect taxes which, like the VAT, are regressive. What it simply provides is that Congress shall "evolve a progressive system of taxation." The constitutional provision has been interpreted to mean simply that "direct taxes are . . . to be preferred [and] as much as possible, indirect taxes should be minimized." (E. FERNANDO, THE CONSTITUTION OF THE PHILIPPINES 221 (Second ed. (1977)). Indeed, the mandate to Congress is not to prescribe, but to evolve, a progressive tax system. Otherwise, sales taxes, which perhaps are the oldest form of indirect taxes, would have been prohibited with the proclamation of Art. VIII, 17(1) of the 1973 Constitution from which the present Art. VI, 28(1) was taken. Sales taxes are also regressive. Resort to indirect taxes should be minimized but not avoided entirely because it is difficult, if not impossible, to avoid them by imposing such taxes according to the taxpayers' ability to pay. In the case of the VAT, the law minimizes the regressive effects of this imposition by providing for zero rating of certain transactions (R.A. No. 7716, 3, amending 102 (b) of the NIRC), while granting exemptions to other transactions. (R.A. No. 7716, 4, amending 103 of the NIRC). Thus, the following transactions involving basic and essential goods and services are exempted from the VAT: (a) Goods for consumption or use which are in their original state (agricultural, marine and forest products, cotton seeds in their original state, fertilizers, seeds, seedlings, fingerlings, fish, prawn livestock and poultry feeds) and goods or services to enhance agriculture (milling of palay, corn sugar cane and raw sugar, livestock, poultry feeds, fertilizer, ingredients used for the manufacture of feeds).

(b) Goods used for personal consumption or use (household and personal effects of citizens returning to the Philippines) and or professional use, like professional instruments and implements, by persons coming to the Philippines to settle here. (c) Goods subject to excise tax such as petroleum products or to be used for manufacture of petroleum products subject to excise tax and services subject to percentage tax. (d) Educational services, medical, dental, hospital and veterinary services, and services rendered under employer-employee relationship. (e) Works of art and similar creations sold by the artist himself. (f) Transactions exempted under special laws, or international agreements. (g) Export-sales by persons not VAT-registered. (h) Goods or services with gross annual sale or receipt not exceeding P500,000.00. (Respondents' Consolidated Comment on the Motions for Reconsideration, pp. 5860) On the other hand, the transactions which are subject to the VAT are those which involve goods and services which are used or availed of mainly by higher income groups. These include real properties held primarily for sale to customers or for lease in the ordinary course of trade or business, the right or privilege to use patent, copyright, and other similar property or right, the right or privilege to use industrial, commercial or scientific equipment, motion picture films, tapes and discs, radio, television, satellite transmission and cable television time, hotels, restaurants and similar places, securities, lending investments, taxicabs, utility cars for rent, tourist buses, and other common carriers, services of franchise grantees of telephone and telegraph. The problem with CREBA's petition is that it presents broad claims of constitutional violations by tendering issues not at retail but at wholesale and in the abstract. There is no fully developed record which can impart to adjudication the impact of actuality. There is no factual foundation to show in the concrete the application of the law to actual contracts and exemplify its effect on property rights. For the fact is that petitioner's members have not even been assessed the VAT. Petitioner's case is not made concrete by a series of hypothetical questions asked which are no different from those dealt with in advisory opinions. The difficulty confronting petitioner is thus apparent. He alleges arbitrariness. A mere allegation, as here, does not suffice. There must be a factual foundation of such unconstitutional taint. Considering that petitioner here would condemn such a provision as void on its face, he has not made out a case. This is merely to adhere to the authoritative doctrine that where the due process and equal protection clauses are invoked, considering that they are not fixed rules but rather broad standards, there is a need for proof of such persuasive character as would lead to such a conclusion. Absent such a showing, the presumption of validity must prevail. (Sison, Jr. v. Ancheta, 130 SCRA at 661)

Adjudication of these broad claims must await the development of a concrete case. It may be that postponement of adjudication would result in a multiplicity of suits. This need not be the case, however. Enforcement of the law may give rise to such a case. A test case, provided it is an actual case and not an abstract or hypothetical one, may thus be presented. Nor is hardship to taxpayers alone an adequate justification for adjudicating abstract issues. Otherwise, adjudication would be no different from the giving of advisory opinion that does not really settle legal issues. We are told that it is our duty under Art. VIII, 1, 2 to decide whenever a claim is made that "there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government." This duty can only arise if an actual case or controversy is before us. Under Art . VIII, 5 our jurisdiction is defined in terms of "cases" and all that Art. VIII, 1, 2 can plausibly mean is that in the exercise of that jurisdiction we have the judicial power to determine questions of grave abuse of discretion by any branch or instrumentality of the government. Put in another way, what is granted in Art. VIII, 1, 2 is "judicial power," which is "the power of a court to hear and decide cases pending between parties who have the right to sue and be sued in the courts of law and equity" (Lamb v. Phipps, 22 Phil. 456, 559 (1912)), as distinguished from legislative and executive power. This power cannot be directly appropriated until it is apportioned among several courts either by the Constitution, as in the case of Art. VIII, 5, or by statute, as in the case of the Judiciary Act of 1948 (R.A. No. 296) and the Judiciary Reorganization Act of 1980 (B.P. Blg. 129). The power thus apportioned constitutes the court's "jurisdiction," defined as "the power conferred by law upon a court or judge to take cognizance of a case, to the exclusion of all others." (United States v. Arceo, 6 Phil. 29 (1906)) Without an actual case coming within its jurisdiction, this Court cannot inquire into any allegation of grave abuse of discretion by the other departments of the government. VIII. Alleged violation of policy towards cooperatives . On the other hand, the Cooperative Union of the Philippines (CUP), after briefly surveying the course of legislation, argues that it was to adopt a definite policy of granting tax exemption to cooperatives that the present Constitution embodies provisions on cooperatives. To subject cooperatives to the VAT would therefore be to infringe a constitutional policy. Petitioner claims that in 1973, P.D. No. 175 was promulgated exempting cooperatives from the payment of income taxes and sales taxes but in 1984, because of the crisis which menaced the national economy, this exemption was withdrawn by P.D. No. 1955; that in 1986, P.D. No. 2008 again granted cooperatives exemption from income and sales taxes until December 31, 1991, but, in the same year, E.O. No. 93 revoked the exemption; and that finally in 1987 the framers of the Constitution "repudiated the previous actions of the government adverse to the interests of the cooperatives, that is, the repeated revocation of the tax exemption to cooperatives and instead upheld the policy of strengthening the cooperatives by way of the grant of tax exemptions," by providing the following in Art. XII: 1. The goals of the national economy are a more equitable distribution of opportunities, income, and wealth; a sustained increase in the amount of goods and services produced by the nation for the benefit of the people; and an expanding productivity as the key to raising the quality of life for all, especially the underprivileged. The State shall promote industrialization and full employment based on sound agricultural development and agrarian reform, through industries that make full and efficient use of human and natural resources, and which are competitive in both

domestic and foreign markets. However, the State shall protect Filipino enterprises against unfair foreign competition and trade practices. In the pursuit of these goals, all sectors of the economy and all regions of the country shall be given optimum opportunity to develop. Private enterprises, including corporations, cooperatives, and similar collective organizations, shall be encouraged to broaden the base of their ownership. 15. The Congress shall create an agency to promote the viability and growth of cooperatives as instruments for social justice and economic development. Petitioner's contention has no merit. In the first place, it is not true that P.D. No. 1955 singled out cooperatives by withdrawing their exemption from income and sales taxes under P.D. No. 175, 5. What P.D. No. 1955, 1 did was to withdraw the exemptions and preferential treatments theretofore granted to private business enterprises in general , in view of the economic crisis which then beset the nation. It is true that after P.D. No. 2008, 2 had restored the tax exemptions of cooperatives in 1986, the exemption was again repealed by E.O. No. 93, 1, but then again cooperatives were not the only ones whose exemptions were withdrawn. The withdrawal of tax incentives applied to all, including government and private entities . In the second place, the Constitution does not really require that cooperatives be granted tax exemptions in order to promote their growth and viability. Hence, there is no basis for petitioner's assertion that the government's policy toward cooperatives had been one of vacillation, as far as the grant of tax privileges was concerned, and that it was to put an end to this indecision that the constitutional provisions cited were adopted. Perhaps as a matter of policy cooperatives should be granted tax exemptions, but that is left to the discretion of Congress. If Congress does not grant exemption and there is no discrimination to cooperatives, no violation of any constitutional policy can be charged. Indeed, petitioner's theory amounts to saying that under the Constitution cooperatives are exempt from taxation. Such theory is contrary to the Constitution under which only the following are exempt from taxation: charitable institutions, churches and parsonages, by reason of Art. VI, 28 (3), and non-stock, non-profit educational institutions by reason of Art. XIV, 4 (3). CUP's further ground for seeking the invalidation of R.A. No. 7716 is that it denies cooperatives the equal protection of the law because electric cooperatives are exempted from the VAT. The classification between electric and other cooperatives (farmers cooperatives, producers cooperatives, marketing cooperatives, etc.) apparently rests on a congressional determination that there is greater need to provide cheaper electric power to as many people as possible, especially those living in the rural areas, than there is to provide them with other necessities in life. We cannot say that such classification is unreasonable. We have carefully read the various arguments raised against the constitutional validity of R.A. No. 7716. We have in fact taken the extraordinary step of enjoining its enforcement pending resolution of these cases. We have now come to the conclusion that the law suffers from none of the infirmities attributed to it by petitioners and that its enactment by the other branches of the government does not constitute a grave abuse of discretion. Any question as to its necessity, desirability or expediency must be addressed to Congress as the body which is electorally responsible, remembering that, as Justice Holmes has said, "legislators are the ultimate guardians of the liberties and welfare of the people in quite as great a degree as are the courts." (Missouri, Kansas & Texas Ry. Co. v. May, 194 U.S. 267, 270, 48 L. Ed. 971, 973 (1904)). It is not right, as petitioner in G.R. No. 115543 does in arguing that we should enforce the public accountability of legislators, that those who took part in passing the law in question by voting for it in Congress should later thrust to the courts the burden of

reviewing measures in the flush of enactment. This Court does not sit as a third branch of the legislature, much less exercise a veto power over legislation. WHEREFORE, the motions for reconsideration are denied with finality and the temporary restraining order previously issued is hereby lifted. SO ORDERED. Narvasa, C.J., Feliciano, Melo, Kapunan, Francisco and Hermosisima, Jr., JJ., concur. Padilla and Vitug, JJ., maintained their separate opinion. Regalado, Davide, Jr., Romero, Bellosillo and Puno, JJ, maintained their dissenting opinion. Panganiban, J., took no part.

TOLENTINO VS. THE SECRETARY OF FINANCE Case Digest

ARTURO M. TOLENTINO VS. THE SECRETARY OF FINANCE and THE COMMISSIONER OF INTERNAL REVENUE 1994 Aug 25 G.R. No. 115455 235 SCRA 630 FACTS: The valued-added tax (VAT) is levied on the sale, barter or exchange of goods and properties as well as on the sale or exchange of services. It is equivalent to 10% of the gross selling price or gross value in money of goods or properties sold, bartered or exchanged or of the gross receipts from the sale or exchange of services. Republic Act No. 7716 seeks to widen the tax base of the existing VAT system and enhance its administration by amending the National Internal Revenue Code. The Chamber of Real Estate and Builders Association (CREBA) contends that the imposition of VAT on sales and leases by virtue of contracts entered into prior to the effectivity of the law would violate the constitutional provision of non-impairment of contracts. ISSUE: Whether R.A. No. 7716 is unconstitutional on ground that it violates the contract clause under Art. III, sec 10 of the Bill of Rights. RULING: No. The Supreme Court the contention of CREBA, that the imposition of the VAT on the sales and leases of real estate by virtue of contracts entered into prior to the effectivity of the law would violate the constitutional provision of non-impairment of contracts, is only slightly less abstract but nonetheless hypothetical. It is enough to say that the parties to a contract cannot, through the exercise of prophetic discernment, fetter the exercise of the taxing power of the State. For not only are existing laws read into contracts in order to fix obligations as between parties, but the reservation of essential attributes of sovereign power is also read into contracts as a basic postulate of the legal order. The policy of protecting contracts against impairment presupposes the maintenance of a government which retains adequate authority to secure the peace and good order of society. In truth, the Contract Clause has never been thought as a limitation on the exercise of the State's power of taxation save only where a tax exemption has been granted for a valid consideration. Such is not the case of PAL in G.R. No. 115852, and the Court does not understand it to make this claim. Rather, its position, as discussed above, is that the removal of its tax exemption cannot be made by a general, but only by a specific, law.

Further, the Supreme Court held the validity of Republic Act No. 7716 in its formal and substantive aspects as this has been raised in the various cases before it. To sum up, the Court holds: (1) That the procedural requirements of the Constitution have been complied with by Congress in the enactment of the statute; (2) That judicial inquiry whether the formal requirements for the enactment of statutes - beyond those prescribed by the Constitution - have been observed is precluded by the principle of separation of powers; (3) That the law does not abridge freedom of speech, expression or the press, nor interfere with the free exercise of religion, nor deny to any of the parties the right to an education; and (4) That, in view of the absence of a factual foundation of record, claims that the law is regressive, oppressive and confiscatory and that it violates vested rights protected under the Contract Clause are prematurely raised and do not justify the grant of prospective relief by writ of prohibition. WHEREFORE, the petitions are DISMISSED.

G.R. No. L-17931

February 28, 1963

CASCO PHILIPPINE CHEMICAL CO., INC., petitioner, vs. HON. PEDRO GIMENEZ, in his capacity as Auditor General of the Philippines, and HON. ISMAEL MATHAY, in his capacity as Auditor of the Central Bank, respondents. Jalandoni & Jamir for petitioner. Officer of the Solicitor General for respondents. CONCEPCION, J.: This is a petition for review of a decision of the Auditor General denying a claim for refund of petitioner Casco Philippine Chemical Co., Inc. The main facts are not disputed. Pursuant to the provisions of Republic Act No. 2609, otherwise known as the Foreign Exchange Margin Fee Law, the Central Bank of the Philippines issued on July 1, 1959, its Circular No. 95. fixing a uniform margin fee of 25% on foreign exchange transactions. To supplement the circular, the Bank later promulgated a memorandum establishing the procedure for applications for exemption from the payment of said fee, as provided in said Republic Act No. 2609. Several times in November and December 1959, petitioner Casco Philippine Chemical Co., Inc. which is engaged in the manufacture of synthetic resin glues, used in bonding lumber and veneer by plywood and hardwood producers bought foreign exchange for the importation of urea and formaldehyde which are the main raw materials in the production of said glues and paid therefor the aforementioned margin fee aggregating P33,765.42. In May, 1960, petitioner made another purchase of foreign exchange and paid the sum of P6,345.72 as margin fee therefor. Prior thereto, petitioner had sought the refund of the first sum of P33,765.42, relying upon Resolution No. 1529 of the Monetary Board of said Bank, dated November 3, 1959, declaring that the separate importation of urea and formaldehyde is exempt from said fee. Soon after the last importation of

these products, petitioner made a similar request for refund of the sum of P6,345.72 paid as margin fee therefor. Although the Central Bank issued the corresponding margin fee vouchers for the refund of said amounts, the Auditor of the Bank refused to pass in audit and approve said vouchers, upon the ground that the exemption granted by the Monetary Board for petitioner's separate importations of urea and formaldehyde is not in accord with the provisions of section 2, paragraph XVIII of Republic Act No. 2609. On appeal taken by petitioner, the Auditor General subsequently affirmed said action of the Auditor of the Bank. Hence, this petition for review. The only question for determination in this case is whether or not "urea" and "formaldehyde" are exempt by law from the payment of the aforesaid margin fee. The pertinent portion of Section 2 of Republic Act No. 2609 reads: The margin established by the Monetary Board pursuant to the provision of section one hereof shall not be imposed upon the sale of foreign exchange for the importation of the following:. xxx xxx xxx

XVIII. Urea formaldehyde for the manufacture of plywood and hardboard when imported by and for the exclusive use of end-users. Wherefore, the parties respectfully pray that the foregoing stipulation of facts be admitted and approved by this Honorable Court, without prejudice to the parties adducing other evidence to prove their case not covered by this stipulation of facts.
1wph1.t

Petitioner maintains that the term "urea formaldehyde" appearing in this provision should be construed as "ureaand formaldehyde" (emphasis supplied) and that respondents herein, the Auditor General and the Auditor of the Central Bank, have erred in holding otherwise. In this connection, it should be noted that, whereas "urea" and "formaldehyde" are the principal raw materials in the manufacture of synthetic resin glues, the National Institute of Science and Technology has expressed, through its Commissioner, the view that: Urea formaldehyde is not a chemical solution. It is the synthetic resin formed as a condensation product from definite proportions of urea and formaldehyde under certain conditions relating to temperature, acidity, and time of reaction. This produce when applied in water solution and extended with inexpensive fillers constitutes a fairly low cost adhesive for use in the manufacture of plywood. Hence, "urea formaldehyde" is clearly a finished product, which is patently distinct and different from urea" and "formaldehyde", as separate articles used in the manufacture of the synthetic resin known as "urea formaldehyde". Petitioner contends, however, that the bill approved in Congress contained the copulative conjunction "and" between the terms "urea" and "formaldehyde", and that the members of Congress intended to exempt "urea" and "formaldehyde" separately as essential elements in the manufacture of the synthetic resin glue called "urea" formaldehyde", not the latter as a finished product, citing in support of this view the statements made on the floor of the Senate, during the consideration of the bill before said House, by members thereof. But, said individual statements do not necessarily reflect the view of the Senate. Much less do they indicate the intent of the House of Representatives (see Song Kiat Chocolate Factory vs. Central Bank, 54 Off. Gaz., 615; Mayon Motors Inc. vs. Acting Commissioner of Internal Revenue, L-15000 [March 29, 1961]; Manila Jockey Club, Inc. vs. Games & Amusement Board, L-12727 [February 29, 1960]). Furthermore, it is well settled that the enrolled bill which uses the term "urea formaldehyde" instead of "urea and formaldehyde" is conclusive upon the courts as regards the tenor of the measure passed by

Congress and approved by the President (Primicias vs. Paredes, 61 Phil. 118, 120; Mabanag vs. Lopez Vito, 78 Phil. 1; Macias vs. Comm. on Elections, L-18684, September 14, 1961). If there has been any mistake in the printing ofthe bill before it was certified by the officers of Congress and approved by the Executive on which we cannot speculate, without jeopardizing the principle of separation of powers and undermining one of the cornerstones of our democratic system the remedy is by amendment or curative legislation, not by judicial decree. WHEREFORE, the decision appealed from is hereby affirmed, with costs against the petitioner. It is so ordered. Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Reyes, J.B.L., Barrera, Paredes, Dizon, Regala and Makalintal, JJ., concur.

Case Digest: Casco Philippine Chemical Co., Inc. vs. Gimenez and Mathay
G.R. No. L-17931 Ponente: Concepcion, J. FACTS: On July 1, 1959, pursuant to Republic Act No. 2609 (Foreign Exchange margin Fee Law), the Central Bank of the Philippines fixed a uniform margin fee of 25% foreign exchange transactions. Petitioner Casco Philippine Chemical Co., Inc., a manufacturer of resin glues, had bought foreign exchange for the importation of urea and formaldehyde raw materials for the said glues and were thus paying for the margin fees required. Relying upon Resolution No. 1529 of the Monetary Board of the said bank declaring that the separate importation of urea and formaldehyde is exempt from the said fee, the petitioner sought for a refund of the margin fees that had been paid. This was denied by the Auditor of the said Bank stating that the claim was not in accord with the provisions of section 2, paragraph XVIII of R.A. 2609. ISSUE: Whether urea and formaldehyde are exempt by law from the payment of the aforesaid margin fee HELD/RULING: Urea and formaldehyde is not exempt from law. The pertinent portion of Section 2 of Republic Act No. 2609 reads: 28 February 1963

The margin established by the Monetary Board pursuant to the provision of section one hereof shall not be imposed upon the sale of foreign exchange for the importation of the following: x x x x x x x x x

XVIII. Urea formaldehyde for the manufacture of plywood and hardboard when imported by and for the exclusive use of endusers. (Emphasis provided.)
Urea formaldehyde is different from urea and formaldehyde, the former being a finished product. It is well settled that the enrolled bill which uses the term urea formaldehyde instead of urea and formaldehyde is conclusive upon the courts as regards the tenor of the measure passed by Congress and approved by the President. The courts cannot speculate that there had been an error in the printing of the bill as this shall violate the principle of separation of powers. Shall there have been any error in the printing, the remedy is by amendment or curative legislation, not by judicial decree.

October 25, 1967 G.R. No. L-28089 BARA LIDASAN, petitioner, vs. COMMISSION ON ELECTIONS, respondent. Suntay for petitioner. Barrios and Fule for respondent. Sanchez, J.: The question initially presented to the Commission on Elections,1 is this: Is Republic Act 4790, which is entitled An Act Creating the Municipality of Dianaton in the Province of Lanao del Sur, but which includes barrios located in another province Cotabato to be spared from attack planted upon the constitutional mandate that No bill which may be enacted into law shall embrace more than one subject which shall be expressed in the title of the bill? Comelecs answer is in the affirmative. Offshoot is the present original petition for certiorari and prohibition. On June 18, 1966, the Chief Executive signed into law House Bill 1247, known as Republic Act 4790, now in dispute. The body of the statute, reproduced in haec verba, reads: Sec. 1. Barrios Togaig, Madalum, Bayanga, Langkong, Sarakan, Kat-bo, Digakapan, Magabo, Tabangao, Tiongko, Colodan, Kabamakawan, Kapatagan, Bongabong, Aipang, Dagowan, Bakikis, Bungabung, Losain, Matimos and Magolatung, in the Municipalities of Butig and Balabagan, Province of Lanao del Sur, are separated from said municipalities and constituted into a distinct and independent municipality of the same province to be known as the Municipality of Dianaton, Province of Lanao del Sur. The seat of government of the municipality shall be in Togaig. Sec. 2. The first mayor, vice-mayor and councilors of the new municipality shall be elected in the nineteen hundred sixty-seven general elections for local officials. Sec. 3. This Act shall take effect upon its approval.

It came to light later that barrios Togaig and Madalum just mentioned are within the municipality of Buldon, Province of Cotabato, and that Bayanga, Langkong, Sarakan, Kat-bo, Digakapan, Magabo, Tabangao, Tiongko, Colodan and Kabamakawan are parts and parcel of another municipality, the municipality of Parang, also in the Province of Cotabato and not of Lanao del Sur. Prompted by the coming elections, Comelec adopted its resolution of August 15, 1967, the pertinent portions of which are: For purposes of establishment of precincts, registration of voters and for other election purposes, the Commission RESOLVED that pursuant to RA 4790, the new municipality of Dianaton, Lanao del Sur shall comprise the barrios of Kapatagan, Bongabong, Aipang, Dagowan, Bakikis, Bungabung, Losain, Matimos, and Magolatung situated in the municipality of Balabagan, Lanao del Sur, the barrios of Togaig and Madalum situated in the municipality of Buldon, Cotabato, the barrios of Bayanga, Langkong, Sarakan, Kat-bo, Digakapan, Magabo, Tabangao, Tiongko, Colodan and Kabamakawan situated in the municipality of Parang, also of Cotabato. Doubtless, as the statute stands, twelve barrios in two municipalities in the province of Cotabato are transferred to the province of Lanao del Sur. This brought about a change in the boundaries of the two provinces. Apprised of this development, on September 7, 1967, the Office of the President, through the Assistant Executive Secretary, recommended to Comelec that the operation of the statute be suspended until clarified by correcting legislation. Comelec, by resolution of September 20, 1967, stood by its own interpretation, declared that the statute should be implemented unless declared unconstitutional by the Supreme Court. This triggered the present original action for certiorari and prohibition by Bara Lidasan, a resident and taxpayer of the detached portion of Parang, Cotabato, and a qualified voter for the 1967 elections. He prays that Republic Act 4790 be declared unconstitutional; and that Comelecs resolutions of August 15, 1967 and September 20, 1967 implementing the same for electoral purposes, be nullified. 1. Petitioner relies upon the constitutional requirement aforestated, that [n]o bill which may be enacted into law shall embrace more than one subject which shall be expressed in the title of the bill.2 It may be well to state, right at the outset, that the constitutional provision contains dual limitations upon legislative power. First. Congress is to refrain from conglomeration, under one statute, of heterogeneous subjects. Second. The title of the bill is to be couched in a language sufficient to notify the legislators and the public and those concerned of the import of the single subject thereof. Of relevance here is the second directive. The subject of the statute must be expressed in the title of the bill. This constitutional requirement breathes the spirit of command.3 Compliance is imperative, given the fact that the Constitution does not exact of Congress the obligation to read during its deliberations the entire text of the bill. In fact, in the case of House Bill 1247, which became Republic

Act 4790, only its title was read from its introduction to its final approval in the House of Representatives4 where the bill, being of local application, originated.5 Of course, the Constitution does not require Congress to employ in the title of an enactment, language of such precision as to mirror, fully index or catalogue all the contents and the minute details therein. It suffices if the title should serve the purpose of the constitutional demand that it inform the legislators, the persons interested in the subject of the bill, and the public, of the nature, scope and consequences of the proposed law and its operation. And this, to lead them to inquire into the body of the bill, study and discuss the same, take appropriate action thereon, and, thus, prevent surprise or fraud upon the legislators.6 In our task of ascertaining whether or not the title of a statute conforms with the constitutional requirement, the following, we believe, may be taken as guidelines: The test of the sufficiency of a title is whether or not it is misleading; and, which technical accuracy is not essential, and the subject need not be stated in express terms where it is clearly inferable from the details set forth, a title which is so uncertain that the average person reading it would not be informed of the purpose of the enactment or put on inquiry as to its contents, or which is misleading, either in referring to or indicating one subject where another or different one is really embraced in the act, or in omitting any expression or indication of the real subject or scope of the act, is bad. xxx xxx xxx In determining sufficiency of particular title its substance rather than its form should be considered, and the purpose of the constitutional requirement, of giving notice to all persons interested, should be kept in mind by the court.7 With the foregoing principles at hand, we take a hard look at the disputed statute. The title An Act Creating the Municipality of Dianaton, in the Province of Lanao del Sur8 projects the impression that solely the province of Lanao del Sur is affected by the creation of Dianaton. Not the slightest intimation is there that communities in the adjacent province of Cotabato are incorporated in this new Lanao del Sur town. The phrase in the Province of Lanao del Sur, read without subtlety or contortion, makes the title misleading, deceptive. For, the known fact is that the legislation has a twopronged purpose combined in one statute: (1) it creates the municipality of Dianaton purportedly from twenty-one barrios in the towns of Butig and Balabagan, both in the province of Lanao del Sur; and (2) it also dismembers two municipalities in Cotabato, a province different from Lanao del Sur. The baneful effect of the defective title here presented is not so difficult to perceive. Such title did not inform the members of Congress as to the full impact of the law; it did not apprise the people in the towns of Buldon and Parang in Cotabato and in the province of Cotabato itself that part of their territory is being taken away from their towns and province and added to the adjacent Province of Lanao del Sur; it kept the public in the dark as to what towns and provinces were actually affected by the bill. These are the pressures which heavily weigh against the constitutionality of Republic Act 4790.

Respondents stance is that the change in boundaries of the two provinces resulting in the substantial diminution of territorial limits of Cotabato province is merely the incidental legal results of the definition of the boundary of the municipality of Dianaton and that, therefore, reference to the fact that portions in Cotabato are taken away need not be expressed in the title of the law. This posture we must say but emphasizes the error of constitutional dimensions in writing down the title of the bill. Transfer of a sizeable portion of territory from one province to another of necessity involves reduction of area, population and income of the first and the corresponding increase of those of the other. This is as important as the creation of a municipality. And yet, the title did not reflect this fact. Respondent asks us to read Felwa vs. Salas, L-16511, October 29, 1966, as controlling here. The Felwa case is not in focus. For there, the title of the Act (Republic Act 4695) reads: An Act Creating the Provinces of Benguet, Mountain Province, Ifugao, and Kalinga-Apayao. That title was assailed as unconstitutional upon the averment that the provisions of the law (Section, 8 thereof) in reference to the elective officials of the provinces thus created, were not set forth in the title of the bill. We there ruled that this pretense is devoid of merit for, surely, an Act creating said provinces must be expected to provide for the officers who shall run the affairs thereof which is manifestly germane to the subject of the legislation, as set forth in its title. The statute now before us stands altogether on a different footing. The lumping together of barrios in adjacent but separate provinces under one statute is neither a natural nor logical consequence of the creation of the new municipality of Dianaton. A change of boundaries of the two provinces may be made without necessarily creating a new municipality and vice versa. As we canvass the authorities on this point, our attention is drawn to Hume vs. Village of Fruitport, 219 NW 648, 649. There, the statute in controversy bears the title An Act to Incorporate the Village of Fruitport, in the County of Muskegon. The statute, however, in its section 1 reads: The people of the state of Michigan enact, that the following described territory in the counties of Muskegon and Ottawa Michigan, to wit: . . . be, and the same is hereby constituted a village corporate, by the name of the Village of Fruitport. This statute was challenged as void by plaintiff, a resident of Ottawa county, in an action to restraint the Village from exercising jurisdiction and control, including taxing his lands. Plaintiff based his claim on Section 20, Article IV of the Michigan State Constitution, which reads: No law shall embrace more than one object, which shall be expressed in its title. The Circuit Court decree voided the statute and defendant appealed. The Supreme Court of Michigan voted to uphold the decree of nullity. The following, said in Hume, may well apply to this case: It may be that words, An act to incorporate the village of Fruitport, would have been a sufficient title, and that the words, in the county of Muskegon were unnecessary; but we do not agree with appellant that the words last quoted may, for that reason, be disregarded as surplusage. . . . Under the guise of discarding surplusage, a court cannot reject a part of the title of an act for the purpose of saving the act. Schmalz vs. Woody, 56 N.J. Eq. 649, 39 A. 539. A purpose of the provision of the Constitution is to challenge the attention of those affected by the act to its provisions. Savings Bank vs. State of Michigan, 228 Mich. 316, 200 NW 262.

The title here is restrictive. It restricts the operation of the act of Muskegon county. The act goes beyond the restriction. As was said in Schmalz vs. Wooly, supra: The title is erroneous in the worst degree, for it is misleading.9 Similar statutes aimed at changing boundaries of political subdivisions, which legislative purpose is not expressed in the title, were likewise declared unconstitutional.10 We rule that Republic Act 4790 is null and void. 2. Suggestion was made that Republic Act 4790 may still be salvaged with reference to the nine barrios in the municipalities of Butig and Balabagan in Lanao del Sur, with the mere nullification of the portion thereof which took away the twelve barrios in the municipalities of Buldon and Parang in the other province of Cotabato. The reasoning advocated is that the limited title of the Act still covers those barrios actually in the province of Lanao del Sur. We are not unmindful of the rule, buttressed on reason and of long standing, that where a portion of a statute is rendered unconstitutional and the remainder valid, the parts will be separated, and the constitutional portion upheld. Black, however, gives the exception to this rule, thus: . . . But when the parts of the statute are so mutually dependent and connected, as conditions, considerations, inducements, or compensations for each other, as to warrant a belief that the legislature intended them as a whole, and that if all could not be carried into effect, the legislature would not pass the residue independently, then, if some parts are unconstitutional, all the provisions which are thus dependent, conditional, or connected, must fall with them,11 In substantially similar language, the same exception is recognized in the jurisprudence of this Court, thus: The general rule is that where part of a statute is void, as repugnant to the Organic Law, while another part is valid, the valid portion if separable from the invalid, may stand and be enforced. But in order to do this, the valid portion must be so far independent of the invalid portion that it is fair to presume that the Legislature would have enacted it by itself if they had supposed that they could not constitutionally enact the other. . . Enough must remain to make a complete, intelligible, and valid statute, which carries out the legislative intent. . . . The language used in the invalid part of the statute can have no legal force or efficacy for any purpose whatever, and what remains must express the legislative will independently of the void part, since the court has no power to legislate, . . . .12 Could we indulge in the assumption that Congress still intended, by the Act, to create the restricted area of nine barrios in the towns of Butig and Balabagan in Lanao del Sur into the town of Dianaton, if the twelve barrios in the towns of Buldon and Parang, Cotabato were to be excluded therefrom? The answer must be in the negative. Municipal corporations perform twin functions. Firstly. They serve as an instrumentality of the State in carrying out the functions of government. Secondly. They act as an agency of the community in the

administration of local affairs. It is in the latter character that they are a separate entity acting for their own purposes and not a subdivision of the State.13 Consequently, several factors come to the fore in the consideration of whether a group of barrios is capable of maintaining itself as an independent municipality. Amongst these are population, territory, and income. It was apparently these same factors which induced the writing out of House Bill 1247 creating the town of Dianaton. Speaking of the original twenty-one barrios which comprise the new municipality, the explanatory note to House Bill 1247, now Republic Act 4790, reads: The territory is now a progressive community; the aggregate population is large; and the collective income is sufficient to maintain an independent municipality. This bill, if enacted into law, will enable the inhabitants concerned to govern themselves and enjoy the blessings of municipal autonomy. When the foregoing bill was presented in Congress, unquestionably, the totality of the twenty-one barrios not nine barrios was in the mind of the proponent thereof. That this is so, is plainly evident by the fact that the bill itself, thereafter enacted into law, states that the seat of the government is in Togaig, which is a barrio in the municipality of Buldon in Cotabato. And then the reduced area poses a number of questions, thus: Could the observations as to progressive community, large aggregate population, collective income sufficient to maintain an independent municipality, still apply to a motley group of only nine barrios out of the twenty-one? Is it fair to assume that the inhabitants of the said remaining barrios would have agreed that they be formed into a municipality, what with the consequent duties and liabilities of an independent municipal corporation? Could they stand on their own feet with the income to be derived in their community? How about the peace and order, sanitation, and other corporate obligations? This Court may not supply the answer to any of these disturbing questions. And yet, to remain deaf to these problems, or to answer them in the negative and still cling to the rule on separability, we are afraid, is to impute to Congress an undeclared will. With the known premise that Dianaton was created upon the basic considerations of progressive community, large aggregate population and sufficient income, we may not now say that Congress intended to create Dianaton with only nine of the original twenty-one barrios, with a seat of government still left to be conjectured. For, this unduly stretches judicial interpretation of congressional intent beyond credibility point. To do so, indeed, is to pass the line which circumscribes the judiciary and tread on legislative premises. Paying due respect to the traditional separation of powers, we may not now melt and recast Republic Act 4790 to read a Dianaton town of nine instead of the originally intended twenty-one barrios. Really, if these nine barrios are to constitute a town at all, it is the function of Congress, not of this Court, to spell out that congressional will. Republic Act 4790 is thus indivisible, and it is accordingly null and void in its totality.14 3. There remains for consideration the issue raised by respondent, namely, that petitioner has no substantial legal interest adversely affected by the implementation of Republic Act 4790. Stated differently, respondents pose is that petitioner is not the real party in interest.

Here the validity of a statute is challenged on the ground that it violates the constitutional requirement that the subject of the bill be expressed in its title. Capacity to sue, therefore, hinges on whether petitioners substantial rights or interests are impaired by lack of notification in the title that the barrio in Parang, Cotabato, where he is residing has been transferred to a different provincial hegemony. The right of every citizen, taxpayer and voter of a community affected by legislation creating a town to ascertain that the law so created is not dismembering his place of residence in accordance with the Constitution is recognized in this jurisdiction.15 Petitioner is a qualified voter. He expects to vote in the 1967 elections. His right to vote in his ownbarrio before it was annexed to a new town is affected. He may not want, as is the case here, to vote in a town different from his actual residence. He may not desire to be considered a part of hitherto different communities which are fanned into the new town; he may prefer to remain in the place where he is and as it was constituted, and continue to enjoy the rights and benefits he acquired therein. He may not even know the candidates of the new town; he may express a lack of desire to vote for anyone of them; he may feel that his vote should be cast for the officials in the town before dismemberment. Since by constitutional direction the purpose of a bill must be shown in its title for the benefit, amongst others, of the community affected thereby,16 it stands to reason to say that when the constitutional right to vote on the part of any citizen of that community is affected, he may become a suitor to challenge the constitutionality of the Act as passed by Congress. For the reasons given, we vote to declare Republic Act 4790 null and void, and to prohibit respondent Commission from implementing the same for electoral purposes. No costs allowed. So ordered. Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P., Zaldivar, Castro and Angeles, JJ., concur. Separate Opinions FERNANDO, J., dissenting: With regret and with due recognition of the merit of the opinion of the Court, I find myself unable to give my assent. Hence these few words to express my stand. Republic Act No. 4790 deals with one subject matter, the creation of the municipality of Dianaton in the province of Lanao del Sur. The title makes evident what is the subject matter of such an enactment. The mere fact that in the body of such statute barrios found in two other municipalities of another province were included does not of itself suffice for a finding of nullity by virtue of the constitutional provision invoked. At the most, the statute to be free from the insubstantial doubts about its validity must be construed as not including the barrios, located not in the municipalities of Butig and Balabagan, Lanao del Sur, but in Parang and Baldon, Cotabato.

The constitutional requirement is that no bill which may be enacted into law shall embrace more than one subject which shall be expressed in the title of the bill.1 This provision is similar to those found in the Constitution of many American States. It is aimed against the evils, of the so-called omnibus bills, and log-rolling legislation, and against surreptitious or unconsidered enactments.2 Where the subject of a bill is limited to a particular matter, the members of the legislature as well as the people should be informed of the subject of proposed legislative measures. This constitutional provision thus precludes the insertion of riders in legislation, a rider being a provision not germane to the subject matter of the bill. It is not to be narrowly construed though as to cripple or impede proper legislation. The construction must be reasonable and not technical. It is sufficient if the title be comprehensive enough reasonably to include the general object which the statute seeks to effect without expressing each and every end and means necessary for the accomplishment of that object. Mere details need not be set forth. The legislature is not required to make the title of the act a complete index of its contents. The constitutional provision is satisfied if all parts of an act which relates to its subject find expression in its title.3 The first decision of this Court, after the establishment of the Commonwealth of the Philippines, in 1938, construing a provision of this nature, Government v. Hongkong & Shanghai Bank,4 held that the inclusion of Section 11 of Act No. 4007, the Reorganization Law, providing for the mode in which the total annual expenses of the Bureau of Banking may be reimbursed through assessment levied upon all banking institutions subject to inspection by the Bank Commissioner was not violative of such a requirement in the Jones Law, the previous organic act. Justice Laurel, however, vigorously dissented, his view being that while the main subject of the act was reorganization, the provision assailed did not deal with reorganization but with taxation. While the case of Government vs. Hongkong & Shanghai Bank was decided by a bare majority of four justices against three, the present trend seems to be that the constitutional requirement is to be given the liberal test as indicated in the majority opinion penned by Justice Abad Santos, and not the strict test as desired by the majority headed by Justice Laurel. Such a trend has been reflected in subsequent decisions beginning with Sumulong v. Commission on Elections,5 up to and including Felwa vs. Salas, a 1966 decision,6 the opinion coming from Justice Concepcion. It is true of course that in Philconsa v. Gimenez,7 one of the grounds on which the invalidity of Republic Act No. 3836 was predicated was the violation of the above constitutional provision. This Retirement Act for senators and representatives was entitled AN ACT AMENDING SUB-SECTION (c), SECTION TWELVE OF COMMONWEALTH ACT NUMBERED ONE HUNDRED EIGHTY-SIX, AS AMENDED BY REPUBLIC ACT NUMBERED THIRTY HUNDRED NINETY-SIX. As we noted, the paragraph in Republic Act No. 3836 deemed objectionable refers to members of Congress and to elective officers thereof who are not members of the Government Service Insurance System. To provide retirement benefits, therefore, for these officials, would relate to a subject matter which is not germane to Commonwealth Act No. 186. In other words, this portion of the amendment ( re retirement benefits

for Members of Congress and appointive officers, such as the Secretary and Sergeants-at-arms for each house) is not related in any manner to the subject of Commonwealth Act No. 186 establishing the Government Service Insurance System and which provides for both retirement and insurance benefits to its members. Nonetheless our opinion was careful to note that there was no abandonment of the principle of liberality. Thus: we are not unmindful of the fact that there has been a general disposition in all courts to construe the constitutional provision with reference to the subject and title of the Act, liberally. It would follow therefore that the challenged legislation Republic Act No. 4790 is not susceptible to the indictment that the constitutional requirement as to legislation having only one subject which should be expressed in his title was not met. The subject was the creation of the municipality of Dianaton. That was embodied in the title. It is in the light of the aforementioned judicial decisions of this Court, some of the opinions coming from jurists illustrious for their mastery of constitutional law and their acknowledged erudition, that, with all due respect, I find the citation from Corpus Juris Secundum, unnecessary and far from persuasive. The State decisions cited, I do not deem controlling, as the freedom of this Court to accept or reject doctrines therein announced cannot be doubted. Wherein does the weakness of the statute lie then? To repeat, several barrios of two municipalities outside Lanao del Sur were included in the municipality of Dianaton of that province. That itself would not have given rise to a constitutional question considering the broad, well-high plenary powers possessed by Congress to alter provincial and municipal boundaries. What justified resort to this Court was the congressional failure to make explicit that such barrios in two municipalities located in Cotabato would thereafter form part of the newly created municipality of Dianaton, Lanao del Sur. To avoid any doubt as to the validity of such statute, it must be construed as to exclude from Dianaton all of such barrios mentioned in Republic Act No. 4790 found in municipalities outside Lanao del Sur. As thus interpreted, the statute can meet the test of the most rigid scrutiny. Nor is this to do violence to the legislative intent. What was created was a new municipality from barrios named as found in Lanao del Sur. This construction assures precisely that. This mode of interpreting Republic Act No. 4790 finds support in basic principles underlying precedents, which if not precisely controlling, have a persuasive ring. In Radiowealth v. Agregado,8 certain provisions of the Administrative Code were interpreted and given a construction which would be more in harmony with the tenets of the fundamental law. In Sanchez v. Lyon Construction,9 this Court had a similar ruling: Article 302 of the Code of Commerce must be applied in consonance with [the relevant] provisions of our Constitution. The above principle gained acceptance at a much earlier period in our constitutional history. Thus in a 1913 decision, In re Guaria:10 In construing a statute enacted by the Philippine Commission we deem it our duty not to give it a construction which would be repugnant to an Act of Congress, if the language of the statute is fairly susceptible of another construction not in conflict with the higher law. In doing so, we think we should not hesitate to disregard contentions touching the apparent intention of the legislator which would lead to the

conclusion that the Commission intended to enact a law in violation of the Act of Congress. However specious the argument may be in favor of one of two possible constructions, it must be disregarded if on examination it is found to rest on the contention that the legislator designed an attempt to transcend the rightful limits of his authority, and that his apparent intention was to enact an invalid law. American Supreme Court decisions are equally explicit. The then Justice, later Chief Justice, Stone, construed statutes with an eye to possible constitutional limitations so as to avoid doubts as to [their] validity.11 From the pen of the articulate jurist, Frankfurter:12 Accordingly, the phrase lobbying activities in the resolution must be given the meaning that may fairly be attributed to it, having special regard for the principle of constitutional adjudication which makes it decisive in the choice of fair alternatives that one construction may raise serious constitutional questions avoided by another. His opinion in the Rumely case continues with the above pronouncement of Stone and two other former Chief Justices: In the words of Mr. Chief Justice Taft, (i)t is our duty in the interpretation of federal statutes to reach conclusion which will avoid serious doubt of their constitutionality, Richmond Screw Anchor Co. v. United States, 275 US 331, 346, 48 S. Ct. 194, 198, 72 L. ed. 303. . . . As phrased by Mr. Chief Justice Hughes, if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided. Crowell v. Benson, 285, 296, 76 L. ed. 598, and cases cited. The prevailing doctrine then as set forth by Justice Clark in a 1963 decision,13 is that courts have consistently sought an interpretation which supports the constitutionality of legislation. Phrased differently by Justice Douglas, the judiciary favors that interpretation of legislation which gives it the greater change of surviving the test of constitutionality.14 It would follow then that both Philippine and American decisions unite in the view that a legislative measure, in the language of Van Devanter should not be given a construction which will imperil its validity where it is reasonably open to construction free from such peril.15 Republic Act No. 4790 as above construed incurs no such risk and is free from the peril of nullity. So I would view the matter, with all due acknowledgment of the practical considerations clearly brought to light in the opinion of the Court.

Lidasan v Comelec G.R. No. L-28089 October 25, 1967 Sanchez, J.: Facts: Lidasan, a resident and taxpayer of the detached portion of Parang, Cotabato, and a qualified voter for the 1967 elections assails the constitutionality of RA 4790 and petitioned that Comelec's resolutions implementing the same for electoral purposes be nullified. Under RA 4790, 12 barrios in two municipalities in the province of Cotabato are transferred to the province of Lanao del Sur. This brought about a change in the boundaries of the two provinces.

1.

2.

Barrios Togaig and Madalum are within the municipality of Buldon in the Province of Cotabato, and that Bayanga, Langkong, Sarakan, Kat-bo, Digakapan, Magabo, Tabangao, Tiongko, Colodan and Kabamakawan are parts and parcel of another municipality, the municipality of Parang, also in the Province of Cotabato and not of Lanao del Sur.

3. Apprised of this development, the Office of the President, recommended to Comelec that the operation of the statute be suspended until "clarified by correcting legislation." 4. Comelec, by resolution declared that the statute should be implemented unless declared unconstitutional by the Supreme Court. ISSUE: Whether or not RA 4790, which is entitled "An Act Creating the Municipality of Dianaton in the Province of Lanao del Sur", but which includes barrios located in another province Cotabato is unconstitutional for embracing more than one subject in the title YES. RA 4790 is null and void 1. The constitutional provision contains dual limitations upon legislative power. First. Congress is to refrain from conglomeration, under one statute, of heterogeneous subjects. Second. The title of the bill is to be couched in a language sufficient to notify the legislators and the public and those concerned of the import of the single subject thereof. Of relevance here is the second directive. The subject of the statute must be "expressed in the title" of the bill. This constitutional requirement "breathes the spirit of command." Compliance is imperative, given the fact that the Constitution does not exact of Congress the obligation to read during its deliberations the entire text of the bill. In fact, in the case of House Bill 1247, which became RA 4790, only its title was read from its introduction to its final approval in the House where the bill, being of local application, originated. 2. The Constitution does not require Congress to employ in the title of an enactment, language of such precision as to mirror, fully index or catalogue all the contents and the minute details therein. It suffices if the title should serve the purpose of the constitutional demand that it inform the legislators, the persons interested in the subject of the bill, and the public, of the nature, scope and consequences of the proposed law and its operation. And this, to lead them to inquire into the body of the bill, study and discuss the same, take appropriate action thereon, and, thus, prevent surprise or fraud upon the legislators. 3. The test of the sufficiency of a title is whether or not it is misleading; and, which technical accuracy is not essential, and the subject need not be stated in express terms where it is clearly inferable from the details set forth, a title which is so uncertain that the average person reading it would not be informed of the purpose of the enactment or put on inquiry as to its contents, or which is misleading, either in referring to or indicating one subject where another or different one is really embraced in the act, or in omitting any expression or indication of the real subject or scope of the act, is bad. 4. The title "An Act Creating the Municipality of Dianaton, in the Province of Lanao del Sur " projects the impression that only the province of Lanao del Sur is affected by the creation of Dianaton. Not the slightest intimation is there that communities in the adjacent province of

Cotabato are incorporated in this new Lanao del Sur town. The phrase "in the Province of Lanao del Sur," read without subtlety or contortion, makes the title misleading, deceptive. For, the known fact is that the legislation has a two-pronged purpose combined in one statute: (1) it creates the municipality of Dianaton purportedly from twenty-one barrios in the towns of Butig and Balabagan, both in the province of Lanao del Sur; and (2) it also dismembers two municipalities in Cotabato, a province different from Lanao del Sur. 5. Finally, the title did not inform the members of Congress the full impact of the law. One, it did not apprise the people in the towns of Buldon and Parang in Cotabato and in the province of Cotabato itself that part of their territory is being taken away from their towns and province and added to the adjacent Province of Lanao del Sur. Two, it kept the public in the dark as to what towns and provinces were actually affected by the bill.

G.R. Nos. L-32613-14 December 27, 1972 PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. SIMEON. FERRER (in his capacity as Judge of the Court of First Instance of Tarlac, Branch I), FELICIANO CO alias LEONCIO CO alias "Bob," and NILO S. TAYAG alias Romy Reyes alias "Taba,"respondents. Solicitor R. Mutuc for respondent Feliciano Co. Jose W. Diokno for respondent Nilo Tayag.

CASTRO, J.:p I. Statement of the Case Posed in issue in these two cases is the constitutionality of the Anti-Subversion Act, 1 which outlaws the Communist Party of the Philippines and other "subversive associations," and punishes any person who "knowingly, willfully and by overt acts affiliates himself with, becomes or remains a member" of the Party or of any other similar "subversive" organization. On March 5, 1970 a criminal complaint for violation of section 4 of the Anti-Subversion Act was filed against the respondent Feliciano Co in the Court of First Instance of Tarlac. On March 10 Judge Jose C. de Guzman conducted a preliminary investigation and, finding a prima facie case against Co, directed the Government prosecutors to file the corresponding information. The twice-amended information, docketed as Criminal Case No. 27, recites: That on or about May 1969 to December 5, 1969, in the Municipality of Capas, Province of Tarlac, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, feloniously became an officer and/or ranking leader of the Communist Party of the Philippines, an outlawed and illegal organization aimed to overthrow the Government of the Philippines by means of force, violence, deceit, subversion, or any other illegal means for the purpose of establishing in the Philippines a totalitarian regime and placing the government under the control and

domination of an alien power, by being an instructor in the Mao Tse Tung University, the training school of recruits of the New People's Army, the military arm of the said Communist Party of the Philippines. That in the commission of the above offense, the following aggravating circumstances are present, to wit: (a) That the crime has been committed in contempt of or with insult to public authorities; (b) That the crime was committed by a band; and afford impunity. (c) With the aid of armed men or persons who insure or afford impunity. Co moved to quash on the ground that the Anti-Subversion Act is a bill of attainder. Meanwhile, on May 25, 1970, another criminal complaint was filed with the same court, sharing the respondent Nilo Tayag and five others with subversion. After preliminary investigation was had, an information was filed, which, as amended, reads: The undersigned provincial Fiscal of Tarlac and State Prosecutors duly designated by the Secretary of Justice to collaborate with the Provincial Fiscal of Tarlac, pursuant to the Order dated June 5, above entitled case, hereby accuse Nilo S. Tayag, alias Romy Reyes alias TABA, ARTHUR GARCIA, RENATO (REY) CASIPE, ABELARDO GARCIA, MANUEL ALAVADO, BENJAMIN BIE alias COMMANDER MELODY and several JOHN DOES, whose identities are still unknown, for violation of REPUBLIC ACT No. 1700, otherwise known as the Anti-Subversion Law, committed as follows: That in or about March 1969 and for sometime prior thereto and thereafter, in the Province of Tarlac, within the jurisdiction of this Honorable Court, and elsewhere in the Philippines, the above-named accused knowingly, willfully and by overt acts organized, joined and/or remained as offices and/or ranking leaders, of the KABATAANG MAKABAYAN, a subversive organization as defined in Republic Act No. 1700; that BENJAMIN BIE and COMMANDER MELODY, in addition thereto, knowingly, willfully and by over acts joined and/or remained as a member and became an officer and/or ranking leader not only of the Communist Party of the Philippines but also of the New People's Army, the military arm of the Communist Party of the Philippines; and that all the above-named accused, as such officers and/or ranking leaders of the aforestated subversive organizations, conspiring, confederating and mutually helping one another, did then and there knowingly, willfully and feloniously commit subversive and/or seditious acts, by inciting, instigating and stirring the people to unite and rise publicly and tumultuously and take up arms against the government, and/or engage in rebellious conspiracies and riots to overthrow the government of the Republic of the Philippines by force, violence, deceit, subversion and/or other illegal means among which are the following: 1. On several occasions within the province of Tarlac, the accused conducted meetings and/or seminars wherein the said accused delivered speeches instigating and inciting the people to unite, rise in arms and overthrow the Government of the Republic of the Philippines, by force, violence, deceit, subversion and/or other illegal means; and toward this end, the said accused organized, among others a chapter of

the KABATAANG MAKABAYAN in barrio Motrico, La Paz, Tarlac for the avowed purpose of undertaking or promoting an armed revolution, subversive and/or seditious propaganda, conspiracies, and/or riots and/or other illegal means to discredit and overthrow the Government of the Republic of the Philippines and to established in the Philippines a Communist regime. 2. The accused NILO TAYAG alias ROMY REYES alias TABA, together with FRANCISCO PORTEM alias KIKO Gonzales and others, pursued the above subversive and/or seditious activities in San Pablo City by recruiting members for the New People's Army, and/or by instigating and inciting the people to organize and unite for the purpose of overthrowing the Government of the Republic of the Philippines through armed revolution, deceit, subversion and/or other illegal means, and establishing in the Philippines a Communist Government. That the following aggravating circumstances attended the commission of the offense: (a) aid of armed men or persons to insure or afford impunity; and (b) craft, fraud, or disguise was employed. On July 21, 1970 Tayag moved to quash, impugning the validity of the statute on the grounds that (1) it is a bill of attainder; (2) it is vague; (3) it embraces more than one subject not expressed in the title thereof; and (4) it denied him the equal protection of the laws. Resolving the constitutional issues raised, the trial court, in its resolution of September 15, 1970, declared the statute void on the grounds that it is a bill of attainder and that it is vague and overboard, and dismissed the informations against the two accused. The Government appealed. We resolved to treat its appeal as a special civil action for certiorari. II. Is the Act a Bill of Attainder? Article III, section 1 (11) of the Constitution states that "No bill of attainder or ex port facto law shall be enacted." 2A bill of attainder is a legislative act which inflicts punishment without trial. 3 Its essence is the substitution of a legislative for a judicial determination of guilt. 4 The constitutional ban against bills of attainder serves to implement the principle of separation of powers 5 by confining legislatures to rule-making 6 and thereby forestalling legislative usurpation of the judicial function. 7 History in perspective, bills of attainder were employed to suppress unpopular causes and political minorities, 8 and it is against this evil that the constitutional prohibition is directed. The singling out of a definite class, the imposition of a burden on it, and a legislative intent, suffice to stigmatizea statute as a bill of attainder. 9 In the case at bar, the Anti-Subversion Act was condemned by the court a quo as a bill of attainder because it "tars and feathers" the Communist Party of the Philippines as a "continuing menace to the freedom and security of the country; its existence, a 'clear, present and grave danger to the security of the Philippines.'" By means of the Act, the trial court said, Congress usurped "the powers of the judge," and assumed "judicial magistracy by pronouncing the guilt of the CCP without any of the forms or safeguards of judicial trial." Finally, according to the trial court, "if the only issue [to be determined] is whether or not the accused is a knowing and voluntary member, the law is still a bill of attainder because it has expressly created a presumption of organizational guilt which the accused can never hope to overthrow." 1. When the Act is viewed in its actual operation, it will be seen that it does not specify the Communist Party of the Philippines or the members thereof for the purpose of punishment. What it

does is simply to declare the Party to be an organized conspiracy for the overthrow of the Government for the purposes of the prohibition, stated in section 4, against membership in the outlawed organization. The term "Communist Party of the Philippines" issued solely for definitional purposes. In fact the Act applies not only to the Communist Party of the Philippines but also to "any other organization having the same purpose and their successors." Its focus is not on individuals but on conduct. 10 This feature of the Act distinguishes it from section 504 of the U.S. Federal Labor-Management Reporting and Disclosure Act of 1959 11 which, in U.S. vs. Brown, 12 was held to be a bill of attainder and therefore unconstitutional. Section 504 provided in its pertinent parts as follows: (a) No person who is or has been a member of the Communist Party ... shall serve (1) as an officer, director, trustee, member of any executive board or similar governing body, business agent, manager, organizer, or other employee (other than as an employee performing exclusively clerical or custodial duties) of any labor organization. during or for five years after the termination of his membership in the Communist Party.... (b) Any person who willfully violates this section shall be fined not more than $10,000 or imprisoned for not more than one year, or both. This statute specified the Communist Party, and imposes disability and penalties on its members. Membership in the Party, without more, ipso facto disqualifies a person from becoming an officer or a member of the governing body of any labor organization. As the Supreme Court of the United States pointed out: Under the line of cases just outlined, sec. 504 of the Labor Management Reporting and Disclosure Act plainly constitutes a bill of attainder. Congress undoubtedly possesses power under the Commerce Clause to enact legislation designed to keep from positions affecting interstate commerce persons who may use of such positions to bring about political strikes. In section 504, however, Congress has exceeded the authority granted it by the Constitution. The statute does not set forth a generally applicable rule decreeing that any person who commits certain acts or possesses certain characteristics (acts and characteristics which, in Congress' view, make them likely to initiate political strikes) shall not hold union office, and leaves to courts and juries the job of deciding what persons have committed the specified acts or possessed the specified characteristics. Instead, it designates in no uncertain terms the persons who possess the feared characteristics and therefore cannot hold union office without incurring criminal liability members of the Communist Party. Communist Party v. Subversive Activities Control Board, 367 US 1, 6 L ed 2d 625, 81 S CT 1357, lend a support to our conclusion. That case involved an appeal from an order by the Control Board ordering the Communist Party to register as a "Communist-action organization," under the Subversive Activities Control Act of 1950, 64 Stat 987, 50 USC sec. 781 et seq. (1958 ed). The definition of "Communistaction organization" which the Board is to apply is set forth in sec. 3 of the Act:

[A]ny organization in the United States ... which (i)is substantially directed, dominated, or controlled by the foreign government or foreign organization controlling the world Communist movement referred to in section 2 of this title, and(ii) operates primarily to advance the objectives of such world Communist movement... 64 Stat 989, 50 USC sec. 782 (1958 ed.) A majority of the Court rejected the argument that the Act was a bill of attainder, reasoning that sec. 3 does not specify the persons or groups upon which the deprivations setforth in the Act are to be imposed, but instead sets forth a general definition. Although the Board has determined in 1953 that the Communist Party was a "Communist-action organization," the Court found the statutory definition not to be so narrow as to insure that the Party would always come within it: In this proceeding the Board had found, and the Court of Appeals has sustained its conclusion, that the Communist Party, by virtud of the activities in which it now engages, comes within the terms of the Act. If the Party should at anytime choose to abandon these activities, after it is once registered pursuant to sec. 7, the Act provides adequate means of relief. (367 US, at 87, 6 L ed 2d at 683) Indeed, were the Anti-Subversion Act a bill of attainder, it would be totally unnecessary to charge Communists in court, as the law alone, without more, would suffice to secure their punishment. But the undeniable fact is that their guilt still has to be judicially established. The Government has yet to prove at the trial that the accused joined the Party knowingly, willfully and by overt acts, and that they joined the Party, knowing its subversive character and with specific intent to further its basic objective, i.e., to overthrow the existing Government by force deceit, and other illegal means and place the country under the control and domination of a foreign power. As to the claim that under the statute organizationl guilt is nonetheless imputed despite the requirement of proof of knowing membership in the Party, suffice it to say that is precisely the nature of conspiracy, which has been referred to as a "dragneet device" whereby all who participate in the criminal covenant are liable. The contention would be correct if the statute were construed as punishing mere membership devoid of any specific intent to further the unlawful goals of the Party. 13 But the statute specifically required that membership must be knowing or active, with specific intent to further the illegal objectives of the Party. That is what section 4 means when it requires that membership, to be unlawful, must be shown to have been acquired "knowingly, willfully and by overt acts." 14 The ingredient of specific intent to pursue the unlawful goals of the Party must be shown by "overt acts."15 This constitutes an element of "membership" distinct from the ingredient of guilty knowledge. The former requires proof of direct participation in the organization's unlawful activities, while the latter requires proof of mere adherence to the organization's illegal objectives. 2. Even assuming, however, that the Act specifies individuals and not activities, this feature is not enough to render it a bill of attainder. A statute prohibiting partners or employees of securities underwriting firms from serving as officers or employees of national banks on the basis of a legislative finding that the persons mentioned would be subject to the temptation to commit acts deemed inimical to the national economy, has been declared not to be a bill of attainder. 16 Similarly, a statute requiring every secret, oath-bound society having a membership of at least twenty to register, and punishing any person who becomes a member of such society which fails to register or remains a member thereof, was declared valid even if in its operation it was shown to apply only to the members of the Ku Klux Klan. 17 In the Philippines the validity of section 23 (b) of the Industrial Peace Act, 18 requiring labor unions to file with the Department of Labor affidavits of union officers "to the effect that they are not members

of the Communist Party and that they are not members of any organization which teaches the overthrow of the Government by force or by any illegal or unconstitutional method," was upheld by this Court. 19 Indeed, it is only when a statute applies either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial does it become a bill of attainder. 20 It is upon this ground that statutes which disqualified those who had taken part in the rebellion against the Government of the United States during the Civil War from holding office, 21 or from exercising their profession, 22 or which prohibited the payment of further compensation to individuals named in the Act on the basis of a finding that they had engages in subversive activities, 23 or which made it a crime for a member of the Communist Party to serve as an officer or employee of a labor union, 24 have been invalidated as bills of attainder. But when the judgment expressed in legislation is so universally acknowledged to be certain as to be "judicially noticeable," the legislature may apply its own rules, and judicial hearing is not needed fairly to make such determination. 25 In New York ex rel. Bryant vs. Zimmerman , 26 the New York legislature passed a law requiring every secret, oath-bound society with a membership of at least twenty to register, and punishing any person who joined or remained a member of such a society failing to register. While the statute did not specify the Ku Klux Klan, in its operation the law applied to the KKK exclusively. In sustaining the statute against the claim that it discriminated against the Ku Klux Klan while exempting other secret, oath-bound organizations like masonic societies and the Knights of Columbus, the United States Supreme Court relied on common knowledge of the nature and activities of the Ku Klux Klan. The Court said: The courts below recognized the principle shown in the cases just cited and reached the conclusion that the classification was justified by a difference between the two classes of associations shown by experience, and that the difference consisted (a) in a manifest tendency on the part of one class to make the secrecy surrounding its purpose and membership a cloak for acts and conduct inimical to personal rights and public welfare, and (b) in the absence of such a tendency on the part of the other class. In pointing out this difference one of the courts said of the Ku Klux Klan, the principal association in the included class: "It is a matter of common knowledge that this organization functions largely at night, its members disguised by hoods and gowns and doing things calculated to strike terror into the minds of the people;" and later said of the other class: "These organizations and their purposes are well known, many of them having been in existence for many years. Many of them are oathbound and secret. But we hear no complaint against them regarding violation of the peace or interfering with the rights of others." Another of the courts said: "It is a matter of common knowledge that the association or organization of which the relator is concededly a member exercises activities tending to the prejudice and intimidation of sundry classes of our citizens. But the legislation is not confined to this society;" and later said of the other class: "Labor unions have a recognized lawful purpose. The benevolent orders mentioned in the Benevolent Orders Law have already received legislative scrutiny and have been granted special privileges so that the legislature may well consider them beneficial rather than harmful agencies." The third court, after recognizing "the potentialities of evil in secret societies," and observing that "the danger of certain organizations has been judicially demonstrated," meaning in that state, said: "Benevolent orders, labor unions and college fraternities have existed for many years, and, while not immune from hostile criticism, have on the whole justified their existence."

We assume that the legislature had before it such information as was readily available including the published report of a hearing, before a committee of the House of Representatives of the 57th Congress relating to the formation, purposes and activities of the Klu Klux Klan. If so it was advised putting aside controverted evidence that the order was a revival of the Ku Klux Klan of an earlier time with additional features borrowed from the Know Nothing and the A. P. A. orders of other periods; that its memberships was limited to native-born, gentile, protestant whites; that in part of its constitution and printed creed it proclaimed the widest freedom for all and full adherence to the Constitution of the United States; in another exacted of its member an oath to shield and preserve "white supremacy;" and in still another declared any person actively opposing its principles to be "a dangerous ingredient in the body politic of our country and an enemy to the weal of our national commonwealth;" that it was conducting a crusade against Catholics, Jews, and Negroes, and stimulating hurtful religious and race prejudices; that it was striving for political power and assuming a sort of guardianship over the administration of local, state and national affairs; and that at times it was taking into its own hands the punishment of what some of its members conceived to be crimes. 27

In the Philippines the character of the Communist Party has been the object of continuing scrutiny by this Court. In 1932 we found the Communist Party of the Philippines to be an illegal association. 28 In 1969 we again found that the objective of the Party was the "overthrow of the Philippine Government by armed struggle and to establish in the Philippines a communist form of government similar to that of Soviet Russia and Red China." 29 More recently, in Lansang vs. Garcia, 30 we noted the growth of the Communist Party of the Philippines and the organization of Communist fronts among youth organizations such as the Kabataang Makabayan (KM) and the emergence of the New People's Army. After meticulously reviewing the evidence, we said: "We entertain, therefore, no doubts about the existence of a sizeable group of men who have publicly risen in arms to overthrow the government and have thus been and still are engaged in rebellion against the Government of the Philippines. 3. Nor is it enough that the statute specify persons or groups in order that it may fall within the ambit of the prohibition against bills of attainder. It is also necessary that it must apply retroactively and reach past conduct. This requirement follows from the nature of a bill of attainder as a legislative adjudication of guilt. As Justice Frankfurter observed, "frequently a bill of attainder was ... doubly objectionable because of its ex post factofeatures. This is the historic explanation for uniting the two mischiefs in one clause 'No Bill of Attainder or ex post facto law shall be passed.' ... Therefore, if [a statute] is a bill of attainder it is also an ex post facto law. But if it is not an ex post facto law, the reasons that establish that it is not are persuasive that it cannot be a bill of attainder." 31 Thus in Gardner vs. Board of Public Works, 32 the U.S. Supreme Court upheld the validity of the Charter of the City of Los Angeles which provided: ... [N]o person shall hold or retain or be eligible for any public office or employment in the service of the City of Los Angeles, in any office or department thereof, either elective or appointive, who has within five (5) years prior to the effective date of this section advised, advocated, or taught, or who may, after this section becomes effective, become a member of or affiliated with any group, society, association, organization or party which advises, advocates or teaches or has within said period of five (5) years advised, advocated, or taught the overthrow by force or violence of the Government of the United States of America or of the State of California.

In upholding the statute, the Court stressed the prospective application of the Act to the petitioner therein, thus: ... Immaterial here is any opinion we might have as to the charter provision insofar as it purported to apply restrospectively for a five-year period to its effective date. We assume that under the Federal Constitution the Charter Amendment is valid to the extent that it bars from the city's public service persons who, subsequently to its adoption in 1941, advise, advocate, or reach the violent overthrow of the Government or who are or become affiliated with any group doing so. The provisions operating thus prospectively were a reasonable regulation to protect the municipal service by establishing an employment qualification of loyalty to the State and the United States. ... Unlike the provisions of the charter and ordinance under which petitioners were removed, the statute in the Lovett case did not declare general and prospectively operative standards of qualification and eligibility for public employment. Rather, by its terms it prohibited any further payment of compensationto named individuals or employees. Under these circumstances, viewed against the legislative background, the statutewas held to have imposed penalties without judicial trial. Indeed, if one objection to the bill of attainder is thatCongress thereby assumed judicial magistracy, them it mustbe demonstrated that the statute claimed to be a bill of attainderreaches past conduct and that the penalties it imposesare inescapable. As the U.S. Supreme Court observedwith respect to the U.S. Federal Subversive Activities ControlAct of 1950:
Nor is the statute made an act of "outlawry" or of attainderby the fact that the conduct which it regulates is describedwith such particularity that, in probability, few organizationswill come within the statutory terms. Legislatures may act tocurb behaviour which they regard as harmful to the public welfare,whether that conduct is found to be engaged in by manypersons or by one. So long as the incidence of legislation issuch that the persons who engage in the regulated conduct, bethey many or few, can escape regulation merely by altering thecourse of their own present activities, there can be no complaintof an attainder. 33

This statement, mutatis mutandis, may be said of theAnti-Subversion Act. Section 4 thereof expressly statesthat the prohibition therein applies only to acts committed"After the approval of this Act." Only those who "knowingly,willfully and by overt acts affiliate themselves with,become or remain members of the Communist Party of thePhilippines and/or its successors or of any subversive association"after June 20, 1957, are punished. Those whowere members of the Party or of any other subversive associationat the time of the enactment of the law, weregiven the opportunity of purging themselves of liability byrenouncing in writing and under oath their membershipin the Party. The law expressly provides that such renunciationshall operate to exempt such persons from penalliability. 34 The penalties prescribed by the Act are thereforenot inescapable. III. The Act and the Requirements of Due Process 1. As already stated, the legislative declaration in section 2 of the Act that the Communist Party of the Philippinesis an organized conspiracy for the overthrow of theGovernment is inteded not to provide the basis for a legislativefinding of guilt of the members of the Party butrather to justify the proscription spelled out in section 4. Freedom of expression and freedom of association are sofundamental that they are thought by some to occupy a"preferred position" in the hierarchy of constitutional values. 35 Accordingly, any limitation on their exercise mustbe justified by the existence

of a substantive evil. This isthe reason why before enacting the statute in question Congressconducted careful investigations and then stated itsfindings in the preamble, thus: ... [T]he Communist Party of the Philippines althoughpurportedly a political party, is in fact an organized conspiracyto overthrow the Government of the Republic of the Philippinesnot only by force and violence but also by deceit, subversionand other illegal means, for the purpose of establishing in thePhilippines a totalitarian regime subject to alien dominationand control; ... [T]he continued existence and activities of the CommunistParty of the Philippines constitutes a clear, present andgrave danger to the security of the Philippines; ... [I]n the face of the organized, systematice and persistentsubversion, national in scope but international in direction,posed by the Communist Party of the Philippines and its activities,there is urgent need for special legislation to cope withthis continuing menace to the freedom and security of the country. In truth, the constitutionality of the Act would be opento question if, instead of making these findings in enactingthe statute, Congress omitted to do so. In saying that by means of the Act Congress has assumed judicial magistracy, the trial courd failed to takeproper account of the distinction between legislative fact and adjudicative fact. Professor Paul Freund elucidatesthe crucial distinction, thus: ... A law forbidding the sale of beverages containingmore than 3.2 per cent of alcohol would raise a question of legislativefact, i.e., whether this standard has a reasonable relationto public health, morals, and the enforcement problem. Alaw forbidding the sale of intoxicating beverages (assuming itis not so vague as to require supplementation by rule-making)would raise a question of adjudicative fact, i.e., whether thisor that beverage is intoxicating within the meaning of the statuteand the limits on governmental action imposed by the Constitution. Of course what we mean by fact in each case is itselfan ultimate conclusion founded on underlying facts and oncriteria of judgment for weighing them.
A conventional formulation is that legislative facts those facts which are relevant to the legislative judgment will not be canvassed save to determine whether there is a rationalbasis for believing that they exist, while adjudicativefacts those which tie the legislative enactment to the litigant are to be demonstrated and found according to the ordinarystandards prevailing for judicial trials. 36

The test formulated in Nebbia vs. new York, 37 andadopted by this Court in Lansang vs. Garcia, 38 is that 'if laws are seen to have a reasonable relation to a proper legislative purpose, and are neither arbitrary nor discriminatory, the requirements of due process are satisfied, and judicial determination to that effect renders a court functus officio." The recital of legislative findings implements this test. With respect to a similar statement of legislative findingsin the U.S. Federal Subversive Activities Control Actof 1950 (that "Communist-action organizations" are controlledby the foreign government controlling the worldCommunist movement and that they operate primarily to"advance the objectives of such world Communist movement"),the U.S. Supreme Court said:
It is not for the courts to reexamine the validity of theselegislative findings and reject them....They are the productof extensive investigation by Committes of Congress over

morethan a decade and a half. Cf. Nebbia v. New York, 291 U.S.502, 516, 530. We certainly cannot dismiss them as unfoundedirrational imaginings. ... And if we accept them, as we mustas a not unentertainable appraisal by Congress of the threatwhich Communist organizations pose not only to existing governmentin the United States, but to the United States as asovereign, independent Nation. ...we must recognize that thepower of Congress to regulate Communist organizations of thisnature is extensive. 39

This statement, mutatis mutandis, may be said of thelegislative findings articulated in the AntiSubversion Act. That the Government has a right to protect itself againstsubversion is a proposition too plain to require elaboration.Self-preservation is the "ultimate value" of society. It surpasses and transcendes every other value, "forif a society cannot protect its very structure from armedinternal attack, ...no subordinate value can be protected" 40 As Chief Justice Vinson so aptly said in Dennis vs. United States: 41 Whatever theoretical merit there may be to the argumentthat there is a 'right' to rebellion against dictatorial governmentsis without force where the existing structure of government provides for peaceful and orderly change. We rejectany principle of governmental helplessness in the face of preparationfor revolution, which principle, carried to its logical conclusion,must lead to anarchy. No one could conceive that it isnot within the power of Congress to prohibit acts intended tooverthrow the government by force and violence. 2. By carefully delimiting the reach of the Act to conduct (as explicitly described in sectin 4 thereof), Congressreaffirmed its respect for the rule that "even throughthe governmental purpose be legitimate and substantial,that purpose cannot be pursued by means that broadly stiflefundamental personal liberties when the end can be more narrowly achieved." 42 The requirement of knowing membership,as distinguished from nominalmembership, hasbeen held as a sufficient basis for penalizing membershipin a subversive organization. 43 For, as has been stated:
Membership in an organization renders aid and encouragement to the organization; and when membership is acceptedor retained with knowledge that the organization is engaged inan unlawful purpose, the one accepting or retaining membershipwith such knowledge makes himself a party to the unlawfulenterprise in which it is engaged. 44

3. The argument that the Act is unconstitutionallyoverbroad because section 2 merely speaks of "overthrow"of the Government and overthrow may be achieved by peaceful means, misconceives the function of the phrase"knowingly, willfully and by overt acts" in section 4. Section 2 is merely a legislative declaration; the definitionsof and the penalties prescribed for the different acts prescribedare stated in section 4 which requires that membershipin the Communist Party of the Philippines, to be unlawful, must be acquired "knowingly, willfully and by overt acts." Indeed, the first "whereas" clause makes clear thatthe overthrow contemplated is "overthrow not only by forceand violence but also be deceit, subversion and other illegalmeans." The absence of this qualificatio in section 2 appearsto be due more to an oversight rather than to deliberateomission. Moreover, the word "overthrow' sufficiently connotesthe use of violent and other illegal means. Only in a metaphoricalsense may one speak of peaceful overthrow ofgovernments, and certainly the law does not speak in metaphors.In the case of the Anti-Subversion Act, the use ofthe word "overthrow" in a metaphorical sense is hardlyconsistent with the clearly delineated objective of the "overthrow,"namely, "establishing in the Philippines a totalitarianregime and place [sic] the Government under thecontrol and domination of an alien power." What thisCourt once said in a

prosecution for sedition is appropos: "The language used by the appellant clearly imported anoverthrow of the Government by violence, and it should beinterpreted in the plain and obvious sense in which it wasevidently intended to be understood. The word 'overthrow'could not have been intended as referring to an ordinarychange by the exercise of the elective franchise. The useof the whip [which the accused exhorted his audience to useagainst the Constabulary], an instrument designed toleave marks on the sides of adversaries, is inconsistentwith the mild interpretation which the appellant wouldhave us impute to the language." 45 IV. The Act and the Guaranty of Free Expression As already pointed out, the Act is aimed against conspiracies to overthrow the Government by force, violence orother illegal means. Whatever interest in freedom of speechand freedom of association is infringed by the prohibitionagainst knowing membership in the Communist Party ofthe Philippines, is so indirect and so insubstantial as to beclearly and heavily outweighed by the overriding considerationsof national security and the preservartion of democraticinstitutions in his country. The membership clause of the U.S. Federal Smith Actis similar in many respects to the membership provision ofthe Anti-Subversion Act. The former provides: Whoever organizes or helps or attempts to organize anysociety, group, or assembly of persons who teach, advocate, orencourage the overthrow or destruction of any such governmentby force or violence; or becomes or is a member of, or affiliatedwith, any such society, group or assembly of persons, knowingthe purpose thereof
Shall be fined not more than $20,000 or imprisoned notmore than twenty years, or both, and shall be ineligible for emplymentby the United States or any department or agencythereof, for the five years next following his conviction.... 46

In sustaining the validity of this provision, the "Court said in Scales vs. United States: 47 It was settled in Dennis that advocacy with which we arehere concerned is not constitutionally protected speech, and itwas further established that a combination to promote suchadvocacy, albeit under the aegis of what purports to be a politicalparty, is not such association as is protected by the firstAmendment. We can discern no reason why membership, whenit constitutes a purposeful form of complicity in a group engagingin this same forbidden advocacy, should receive anygreater degree of protection from the guarantees of that Amendment. Moreover, as was held in another case, where the problemsof accommodating the exigencies of self-preservationand the values of liberty are as complex and intricate as inthe situation described in the legislative findings stated inthe U.S. Federal Subversive Activities Control Act of 1950,the legislative judgment as to how that threat may best bemet consistently with the safeguards of personal freedomsis not to be set aside merely because the judgment of judgeswould, in the first instance, have chosen other methods. 48 For in truth, legislation, "whether it restrains freedom tohire or freedom to speak, is itself an effort at compromisebetween the claims of the social order and individual freedom,and when the legislative compromise in either case isbrought to the judicial test the court stands one step removedfrom the conflict and its resolution through law." 49 V. The Act and its Title The respondent Tayag invokes the constitutional commandthat "no bill which may be enacted into law shall embrace more than one subject which shall be expressed in the title of the bill." 50

What is assailed as not germane to or embraced in thetitle of the Act is the last proviso of section 4 which reads: And provided, finally, That one who conspires with anyother person to overthrow the Government of the Republic ofthe Philippines, or the government of any of its political subdivisionsby force, violence, deceit, subversion or illegal means,for the purpose of placing such Government or political subdivisionunder the control and domination of any lien power, shallbe punished by prision correccional to prision mayor with allthe accessory penalties provided therefor in the same code. It is argued that the said proviso, in reality, punishes notonly membership in the Communist Party of the Philippinesor similar associations, but as well "any conspiracyby two persons to overthrow the national or any local governmentby illegal means, even if their intent is not to establisha totalitarian regime, burt a democratic regime, evenif their purpose is not to place the nation under an aliencommunist power, but under an alien democratic power likethe United States or England or Malaysia or even an anti-communistpower like Spain, Japan, Thailand or Taiwanor Indonesia." The Act, in addition to its main title ("An Act to Outlawthe Communist Party of the Philippines and SimilarAssociations, Penalizing Membership Therein, and forOther Purposes"), has a short title. Section 1 providesthat "This Act shall be known as the Anti-Subversion Act."Together with the main title, the short title of the statuteunequivocally indicates that the subject matter is subversionin general which has for its fundamental purpose the substitutionof a foreign totalitarian regime in place of theexisting Government and not merely subversion by Communistconspiracies.. The title of a bill need not be a catalogue or an indexof its contents, and need not recite the details of the Act. 51 It is a valid title if it indicates in broad but clear termsthe nature, scope, and consequences of the proposed lawand its operation. 52 A narrow or technical construction isto be avoided, and the statute will be read fairly and reasonablyin order not to thwart the legislative intent. We holdthat the Anti-Subversion Act fully satisfies these requirements. VI. Conclusion and Guidelines In conclusion, even as we uphold the validity of theAnti-Subversion Act, we cannot overemphasize the needfor prudence and circumspection in its enforcement, operatingas it does in the sensitive area of freedom of expressionand belief. Accordingly, we set the following basic guidelines to be observed in any prosecution under the Act.The Government, in addition to proving such circumstancesas may affect liability, must establish the following elementsof the crime of joining the Communist Party of the Philippinesor any other subversive association: (1) In the case of subversive organizations other thanthe Communist Party of the Philippines, (a) that thepurpose of the organization is to overthrow the presentGovernment of the Philippines and to establish in thiscountry a totalitarian regime under the domination of aforeign power; (b) that the accused joined such organization;and (c) that he did so knowingly, willfully and byovert acts; and (2) In the case of the Communist Party of the Philippines,(a) that the CPP continues to pursue the objectiveswhich led Congress in 1957 to declare it to be an organizedconspiracy for the overthrow of the Government by illegalmeans for the purpose of placing the country under thecontrol of a foreign power; (b) that the accused joined theCPP; and (c) that he did so willfully, knowingly and byovert acts.

We refrain from making any pronouncement as to thecrime or remaining a member of the Communist Party ofthe Philippines or of any other subversive association: weleave this matter to future determination. ACCORDINGLY, the questioned resolution of September15, 1970 is set aside, and these two cases are herebyremanded to the court a quo for trial on the merits. Costs de oficio. Makalintal, Zaldivar, Teehankee, Barredo and Esguerra, JJ., concur. Concepcion, C.J., concurs in the result. Makasiar and Antonio, JJ., took no part.

Separate Opinions

FERNANDO, J., dissenting: It is with regard that I find myself unable to join therest of my brethren in the decision reached upholding thevalidity of the Anti-Subversion Act. 1 It is to be admittedthat the learned and scholarly opinbion of Justice Castro hasthe impress of conscientious and painstaking scrutiny ofthe constitutional issues raised. What is more, the stressin the concluding portion thereof on basic guidelines thatwill assure in the trial of those prosecuted under suchAct respect for their constitutional rights is to be commended.Nonetheless, my own reading of the decisionscited, interpreting the bill of attainder clause 2 coupled withthe fears, perhaps induced by a too-latitudinarian constructionof the guarantees of freedom of belief and expression 3 as well as freedom of association 4 as to impermissible inroadsto which they may be exposed, compels a differentconclusion. Hence this dissent. 1. There is to be sure no thought on my part that theequally pressing concern of state safety and security shouldbe ignored. The political branches of the governmentwould lay themselves oepn to a justifiable indictment fornegligence had they been remiss in their obligation tosafeguard the nation against its sworn enemies. In a simplerera, where the overthrow of the government wasusually through the rising up in arms, with weapons farless sophisticated than those now in existence, there wasno constitutional issue of the magnitude that now confrontsus. Force has to be met with force. It was as clearcutas that. Advances in science as well as more subtlemethods of inducing disloyalty and weakening the senseof allegiance have introduced complexities in coping withsuch problems. There must be then, and I am the firstto recognize it, a greater understanding for the governmentalresponde to situations of that character. It is inthat light that the validity of the AntiSubversion Act isto be appraised. From ny standpoint, and I am not presumptuousenough to claim that it is the only perspectiveor that is the most realistic, I feel that there was an insufficientappreciation of the compulsion of the constitutionalcommands against bills of attainder and abridgmentof free speech. I am comforted by the thought that evenhad my view prevailed, all that it would mean is that anew legislation, more in comformity to my way of thinkingto what is

ordained by the fundamental law, wouldhave to be enacted. No valid fear need be entertained thenthat a setback would be occasioned to legitilate state effortsto stem the tide of subversive activities, in whateverform manifested. 2. The starting point in any inquiry as to the significanceof the bill of attainder clause is the meaning attachedto it by the Constitutional Convention of 1934 and by the people who adopted it. As was explained by the then Delegate, later Justice, Jose P. Laurel in his address on November19, 1934 as Chairman of the Committee on the Bill of Rights quoted in the opinion of the Court: "A billof attainder is a legislative act which inflicts punishment without judicial trial. (Cummings v. United States, 4Wall. 277, 18 L ed 356). In England, the Bill of Attainder was an act of Parliament by which a man was tried, convictedand sentenced to death without a jury, without ahearing in court, without hearing the witnesses againsthim and without regard to the rules of evidence. His bloodwas attainted or corrupted, rendering him devoid of allheritable quality of acquiring and disposing property bydescent. (Ex parte Garland, 4 Wall. 333, 18 L ed. 366) If the penalty imposed was less than death, the act wasknown as a 'bill of pains and penalties.' Bills of attainder, like ex post facto laws, were favorite methods of Stuartoppression. Once, the name of Thomas Jefferson was includedin a bill of attainder presented to Parliament becauseof his reform activities." 5 Two American SupremeCourt decision were thus in the minds of the framers.They are Cummings v. Missouri 6 and Ex parte Garland. 7 They speak unequivocally. Legislative acts, no matter whattheir form, that apply either to named individuals or easilyascertainable members of a group in such a way as to inflicton them punishment amounting to a deprivation ofany right, civil or political, without judicial trial are billsof attainder prohibited by the Constitution. 8 Cummings v. Missouri 9 was a criminal prosecution ofa Catholic priest for refusing to take the loyalty oath requiredby the state Constitution of Missouri of 1865. Undersuch a provision, lawyers, doctors, ministers, and otherprofessionals must disavow that they had ever, "by act orword," manifested a "desire" for the success of the nation'senemies or a sympathy" with the rebels of the AmericanCivil War. If they swore falsely, they were guilty of perjury.If they engaged in their professions without theoath, they were criminally liable. The United States Supreme Court condemned the provision as a bill of attainder,identified as any legislative act inflicting punishment withoutjudicial trial. The deprivation of any right, civil orpolitical, previously enjoyed, amounted to a punishment.Why such a conclusion was unavoidable was explained inthe opinion of Justice Field thus: "A bill of attainder isa legislative act, which inflicts punishment without a judicialtrial. If the punishment be less than death, the actis termed a bill of pains and penalties. Within the meaningof the Constitution, bills of attainder include bills ofpains and penalties. In these cases the legislative body, inaddition to its legitimate functions, exercises the powersand office of judge; it assumes, in the language of thetextbooks, judicial magistracy; it pronounces upon theguilt of the party, without any of the forms or safeguardsof trial; it determines the sufficiency of the proofs produced,whether conformable to the rules of evidence orotherwise; and it fixes the degree of punishment in accordancewith its own notions of the enormity of the offense. ... If the clauses of the 2d article of the Constitutionof Missouri, to which we have referred, had in termsdeclared that Mr. Cummings was guilty, or should be heldguilty, of having been in armed hostility to the UnitedStates, or of having entered that state to avoid beingenrolled or drafted into the military service of the UnitedStates, and, therefore, should be deprived of the right topreach as a priest of the Catholic church, or to teach inany institution of learning, there could be no question thatthe clauses would constitute a bill of attainder within themeaning of the Federal Constitution. If these clauses, insteadof mentioning his name, had declared that all priestsand clergymen within the state of Missouri were guiltyof these acts, or should be held guilty of them, and hencebe subjected to the like deprivation, the clause would beequally open to objection. And further, it these clauseshad declared that all such priests and clergymen shouldbe so held guilty, and be thus deprived, provided they didnot, by a day designated, do certain specified acts, theywould be no less within the inhibition of the Federal Constitution.In all these cases there would be the legislativeenactment creating the deprivation, without any of theordinary forms and guards provided for the security ofthe citizen in the administration of justice by the establishedtribunales." 10

On the very same day that the ruling in Cummings washanded down, Ex parte Garland 11 was also decided. Thatwas a motion for leave to practrice as an attorney beforethe American Supreme Court. Petitioner Garland wasadmitted to such bar at the December term of 1860. Underthe previous rules of such Court, all that was necessarywas that the applicant have three years practice in the statecourts to which he belonged. In March 1865, the rule waschanged by the addition of a clause requiring that an oathbe taken under the Congressional acts of 1862 and 1865to the effect that such candidate for admission to the barhad never voluntarily borne arms against the UnitedStates. Petitioner Garland could not in conscience subscribeto such an oath, but he was able to show a presidentialpardon extended on July 15, 1865. With such actof clemency, he moved that he be allowed to continue inpractice contending that the test oath requirement wasunconstitutional as a bill of attainder and that at any rate,he was pardoned. The same ruling was announced by theCourt again through Justice Field. Thus: "In the exclusionwhich the statute adjudges, it imposes a punishmentfor some of the acts specified which were not punishableat the time they were committedl; and for other of the actsit adds a new punishment to that before prescribed, andit is thus brought within the further inhibition of the Consitutionagainst the passage of an ex post facto law. Inthe case of Cummings v. Missouri, just decided, ... wehave had occasion to consider at length the meaning of abill of attainder and of an ex post facto law in the clauseof the Constitution forbidding their passage by the states,and it is unnecessary to repeat here what we there said.A like prohibition is contained in the Constitution againstenactments of this kind by Congress; and the argumentpresented in that case against certain clauses of the Constitutionof Missouri is equally applicable to the act ofCongress under consideration in this case."12 There was a reiteration of the Cummings and Garlanddoctrine in United States v. Lovett, 13 decided in 1946.There it was shown that in 1943 the respondents, Lovett,Watson, and Dodd, were and had been for several yearsworking for the government. The government agencies,which had lawfully employed them, were fully satisfiedwith the quality of their work and wished to keep thememployed on their jobs. Over their protest, Congress providedin Section 304 of the Urgent Deficiency AppropriationAct of 1943, by way of an amendment attached to theHouse Bill, that after November 15, 1943, no salary orcompensation should be paid respondent out of any moneythen or thereafter appropriated except for services as jurorsor members of the armed forces, unless they wereprior to November 15, 1943, again appointed to jobs bythe President with the advide and consent of the Senate.Notwithstanding such Congressional enactment, and thefailure of the President to reappoint the respondents, theagencies, kept all the respondents at work on their jobs forvarying periods after November 15, 1943, but their compensationwas discontinued after that date. Respondentsbrought this action in the Court of Claims for the salariesto which they felt entitled. The Ameican Supreme Courtstated that its inquiry was thus confined to whether theaction in the light of proper construction of the Act presenteda justificiable controversy, and, if so, whether Section304 is a bill of attainder insofar as the respondents wereconcerned. After holding that there was a juditiciable, view theAmerican Supreme Court in an opinion by Justice Blackcategorically affirmed: "We hold that Section 304 fallsprecisely within the category of Congressional actionswhich the Constitution barred by providing that 'No Billof Attainder or ex post Law shall be passed.' InCummings v. State of Missouri, ... this Court said, 'Abill of attainder is a legislative act which inflicts punishmentwithout a judicial trial. If the punishment be lessthan death, the act is termed a bill of pains and penalties.Within the meaning of the Constitution, bills of attainderinclude bills of pains and penalties.' ... On the sameday the Cummings case was decided, the Court, in Exparte Garland, also held invalid on the same grounds anAct of Congress which required attorneys practicing beforethis Court to take a similar oath. Neither of thesecases has ever been overruled. They stand for the propositionthat legislative acts, no matter what their form,that apply either to named individuals or to easily ascertainablemembers of a group in such a way as to inflictpunishment on them without a judicial trial are billsof attainder prohibited by the Constitution. Adherenceto this principle requires invalidation of Section 304. Wedo adhere to it." 14

United States v. Brown 15 a 1965 decision was the firstcase to review a conviction under the LaborManagementReporting and Disclosure Act of 1959, making it a crimefor a member of the Communist Party to serve as anofficer ir, except in clerical or custodial positions, anemployee of a labor union. Respondent Brown, a longshoremanon the San Francisco docks, and an open andavowed Communist, for more than a quarter of a centurywas elected to the Executive Board of Local 10 of theInternational Longshoremen's and Warehousemen's Unionfor consecutive one-year terms in 1959, 1960, and 1961.On May 24, 1961, respondent was charged in a one-countindictment returned in a district court of California withservicing as a member of an executive board of a labororganization while a member of the Communist Party, inwillful violation of the above provision. The question ofits validity under the bill of attainder clause was thusproperly raised for adjudication. While convicted in thelower court, the Court of Appeals for the Ninth Circuitreversed. It was sustained by the American SupremeCourt. As noted in the opinion by Chief Justice Warren,"the wide variation in form, purpose and effect of ante-Constitutionbills of attainder indicates that the properscope of the Bill of Attainder Clause, and its relevance tocontemporary problems, must ultimately be sought by attemptingto discern the reasons for its inclusion in theConstitution, and the evils it was desinged to eliminate.The best available evidence, the writings of the architectsof our constitutional system, indicates that the Bill ofAttainder Clause was inteded not as a narrow, technical(and therefore soon to be outmoded) prohibition, but ratheras an implementation of the separation of powers, ageneral safeguard against legislative exercise of the judicialfunction, or more simply trial by legislature." 16 Then after referring to Cummings, Garland, and Lovett,Chief Justice Warren continued: "Under the line of casesjust outlined, Sec. 504 of the Labor Management Reportingand Disclosure Act plainly constitutes a bill of attainder. Congress undoubtedly possesses power under theCommerce Clause to enact legislation designed to keepfrom positions affecting interstate commerce persons whomay use such positions to bring about political strikes. In Sec. 504, however, Congress has exceeded the authoritygranted it by the Constitution. The statute does not setforth a generally applicable rule decreeing that any personwho commits certain acts or possesses certain characteristics (acts and characteristics whhich, in Congress'view, make them likely to initiate political strikes) shallnot hold union office, and leave to courts and juries thejob of deciding what persons have committed the specifiedacts or possessed the specified characteristics. Instead,it designates in no uncertain terms the personswho possess the fearec characteristics and therefore cannothold union office without incurring criminal liability members of the Communist Party." 17 Even Communist Party v. Subversive Activities ControlBoard, 18 where the provision of the Subversive ActivitiesControl Act of 1950 requiring the Communist Party ofthe United States to register was sustained, the opinionof Justice Frankfurter for the Court, speaking for a fivemanmajority, did indicate adherence to the Cummingsprinciple. Had the American Communist Party been outlawed,the outcome certainly would have been different.Thus: "The Act is not a bill of attainder. It attaches notto specified organizations but to described activities inwhich an organization may or may not engage. The singlingout of an individual for legislatively prescribed punishmentconstitutes an attainder whether the individualis called by name or described in terms of conduct which,because it is past conduct, operates only as a designationof particular persons. ... The Subversive Activities ControlAct is not of that king. It requires the registrationonly of organizations which, after the date of the Act,are found to be under the direction, domination, or controlof certain foreign powers and to operate primarily toadvance certain objectives. This finding must be madeafter full administrative hearing, subject to judicial reviewwhich opens the record for the reviewing court'sdetermination whether the administrative findings as tofact are supported by the preponderance of the evidence.Present activity constitutes an operative element to whichthe statute attaches legal consequences, not merely a pointof reference for the ascertainment of particularly personsineluctably designated by the legislature." 19 The teaching of the above cases, which I find highlypersuasive considering what appeared to be in the mindsof the framers of the 1934 Constitutional Conventionyields for me the conclusion that the Anti-SubversionAct falls within the ban of the bill of attainder clause. Itshould be noted that three

subsequent cases upholding theCummings and Garland doctrine were likewise cited in theopinion of the Court. The interpretation accorded to themby my brethren is, of course, different but I am unable togo along with them especially in the light of the categoricallanguage appearing in Lovett. This is not to lose sightof the qualification that for them could deprive such aholding of its explicit character as shown by this excerptfrom the opinion of the Court: "Indeed, were the Anti-SubversionAct a bill of attainder it would be totally unnecessaryto charge communists in court, as the law alone,without more, would suffice to secure their conviction andpunishment. But the fact is that their guilt still has to bejudicially estblished. The Government has yet to proveat the trial that the accused joined the Party knowingly,willfully and by overt acts, and that they joined the Partyknowing its subversive character and with specific intentto further its objective, i.e., to overthrow the existing Governmentby force, deceit, and other illegal means and placeit under the control and domination of a foreign power. 20While not implausible, I find difficulty in yielding acceptance.In Cummings, there was a criminal prosecution ofthe Catholic priest who refused to take the loyalty oath.Again in Brown, there was an indictment of the laborleader who, judging by his membership in the CommunistParty, did transgress the statutory provision subsequentlyfound offensive to the bill attainder clause. If the constructionI would place on theoff-repeated pronouncementof the American Supreme Court is correct, then the merefact that a criminal case would have to be instituted wouldnot save the statute. It does seem clear to me that fromthe very title of the Anti-Subversion Act, "to outlaw the Communist Party of the Philippines and similar associations,"not to mention other specific provisions, the taintof invalidity is quite marked. Hence, my inability to concurin the judgment reached as the statute not suffering fromany fatal infirmity in view of the Constitutional prohibitionagainst bills of attainder. 3. This brings me to the question of the alleged repugnancyof the Anti-Subversion Act to the intellectual libertysafeguarded by the Constitution in terms of the free speechand free assocition guarantees. 21 It is to be admitted thatat the time of the enactment of Republic Act No. 1700,the threat that Communism, the Russian brand then, didpose was a painful reality for Congressional leaders andthe then President. Its shadow fell squarely across thelives of all. Subversion then could neither be denied notdisparaged. There was, in the expert opinion of those conversantwith such mattes, a danger to out national existenceof no mean character. Nonetheless, the remedies toward off such menace must not be repugnant to our Constitution.We are legally precluded from acting in anyother way. The apprehension justly felt is no warrant forthrowing to the discard fundamental guarantees. Vigilantwe had to be, but not at the expense of constitutional ideals. One of them, certainly highly-prized of the utmost significance,is the right to dissent. One can differ, evenobject; one can express dissatisfaction with things as theyare. There are timew when one not only can but must.Such dissent can take the form of the most critical andthe most disparaging remarks. They may give offense tothose in authority, to those who wield powe and influence.Nevertheless, they are entitled to constitutional protection.Insofar as the content of such dissent is concerned, thelimits are hardly discernible. It cannot be confined totrivial matters or to such as are devoid of too much significance.It can reach the heart of things. Such dissentmay, for those not so adventurous in the realm of ideas,possess a subversive tinge. Even those who oppose a democraticform of government cannot be silenced. This is trueespecially in centers of learning where scholars competentin their line may, as a result of their studies, assert thata future is bleak for the system of government now favoredby Western democracies. There may be doubts entertainedby some as to the lawfulness of their exercisingthis right to dissent to the point of advocary of such adrastic change. Any citizen may do so without fear thatthereby he incurs the risk of a penal sanction. That ismerely to affirm the truth of this ringing declaration fromJefferson: "If there be any among us who would wish todissolve this union or to change its republican form, letthem stand undisturbed as monuments of the safety withwhich error of opinion may be tolerated where reason isleft free to combat it." 22 As was so well put by the philosopher,Sidney Hook: "Without holding the right to theexpression of heresy at any time and place to be absolute for even the right to non-heretical speech cannot beabsolute it still seems wise to tolerate the expression evenof

Communist, fascist and other heresies, lest in outlawingthem we include other kings of heresies, and deprive ourselvesof the opportunity to acquite possibly sounder ideasthan our own." 23 The line is to be drawn, however, where the wordsamount to an incitement to commit the crime of seditionor rebellion. The state has been reached, to follow theformulation of Cardozo, where thought merges into action.Thus is loyalty shown to the freedom of speech or pressordained by the Constitution. It does not bar the expressionof views affecting the very life of the state, even ifopposed to its fundamental presuppositions. It allows, ifit does not require as a matter of fact, that unorthodoxideas be freely ventilated and fully heard. Dissent is notdisloyalty. Such an approach is reinforced by the well-settled constitutionalprinciple "that even though the governmental purposesbe legitimate and substantial, they cannot be pursuedby means that broadly stifle fundamental personalliberties when the end can be more narrowly achieved.For precision of regulation is the touchstone in an areaso closely related to our most precious freedoms." 24 This is so for "a governmental purpose to control or prevent activities constitutionally subject to state regulation may notbe achieved by means which sweep unnecessarily broadlyand thereby invade the area of protected freedoms." 25 It isindispensable then that "an over breadth" in the applicabilityof the statute be avoided. If such be the case, then theline dividing the valid from the constitutionally infirm hasbeen crossed. That for me is the conclusion to be drawnfrom the wording of the Anti-Subversion Act. There is to my mind support for the stand I take inthe dissent of Justice Black in the Communist Party casediscussed above. What is to be kept in view is that a legislativemeasure certainly less drastic in its treatment ofthe admittedly serious Communist problem was found inthe opinion of this noted jurist offensive to the FirstAmendment of the American Constitution safeguardingfree speech. Thus: "If there is one thing certain aboutthe First Amendment it is that this Amendment was designedto guarantee the freest interchange of ideas aboutall public matters and that, of course, means the interchangeof all ideas, however such ideas may be viewed inother countries and whatever change in the existing structureof government it may be hoped that these ideas willbring about. Now, when this country is trying to spreadthe high ideals of democracy all over the world ideals that are revolutionary in many countries seems to be aparticularly inappropriate time to stifle First Amendmentfreedoms in this country. The same arguments that areused to justify the outlawry of Communist ideas here couldbe used to justify an outlawry of the ideas of democracyin other countries." 26 Further he stated: "I believe with theFramers of the First Amendment that the internal securityof a nation like ours does not and cannot be made todepend upon the use of force by Government to make allthe beliefs and opinions of the people fit into a commonmold on any single subject. Such enforced conformity ofthought would tend only to deprive our people of the boldspirit of adventure and progress which has brought thisNation to its present greatness. The creation of publicopinion by groups, organizations, societies, clubs, and partieshas been and is a necessary part of our democraticsociety. Such groups, like the Sons of Liberty and theAmerican Corresponding Societies, played a large part increating sentiment in this country that led the people ofthe Colonies to want a nation of their own. The Father ofthe Constitution James Madison said, in speakingof the Sedition Act aimed at crushing the Jefferson Party,that had that law been in effect during the period beforethe Revolution, the United States might well have continuedto be 'miserable colonies, groaning under a foreign yoke.'In my judgment, this country's internal security can betterbe served by depending upon the affection of the peoplethan by attempting to instill them with fear and dreadof the power of Government. The Communist Party hasnever been more than a small group in this country. Andits numbers had been dwindling even before the Governmentbegan its campaign to destroy the Party by force oflaw. This was because a vast majority of the Americanpeople were against the Party's policies and overwhelminglyrejected its candidates year after year. That is the trueAmerican way of securing this Nation against dangerousideas. Of course that is not the way to protect the Nationagainst actions of violence and treason. The Foundersdrew a distinction in our Constitution which we would bewise to follow. They gave the Government the

fullest powerto prosecute overt actions in violation of valid lawsbut withheld any power to punish people for nothing morethan advocacy of their views." 27 With the sentiments thus expressed uppermost in mymind and congenial to my way of thinking, I cannot sharethe conclusion reached by my breathren as to the Anti-Subversion Act successfully meeting the test of validity onfree speech and freedom of association grounds. 4. It could be that this approach to the constitutionalquestions involved arises from an appraisal of the challengedstatute which for me is susceptible of an interpretationthat it does represent a defeatist attitude on thepart of those of us, who are devotees at the shrine of aliberal-democratic state. That certainly could not havebeen the thought of its framers; nonetheless, such an assumptionis not devoid of plausibility for why resort tothis extreme measure susceptible as it is to what apparentlyare not unfounded attacks on constitutional grounds?Is this not to ignore what previously was accepted as anobvious truth, namely that the light of liberalism sendsits shafts in many directions? It can illuminate, and itcan win the hearts and minds of men. It if difficult forme to accept the view then that a resort to outlawry isindispensable, that suppression is the only answer to whatis an admitted evil. There could have been a greater exposureof the undesirability of the communist creed, itscontradictions and arbitrarines, its lack of fealty to reason,its inculcation of disloyalty, and its subservience tocentralized dictation that brooks no opposition. It is thus,in a realistic sense, a manifestation of the fear of freethought and the will to suppress it. For better, of course,is the propaganda of the deed. What the communists promise,this government can fulfill. It is up to it then to takeremedial measures to alleviate the condition of our countrymenwhose lives are in a condition of destitution andmisery. It may not be able to change matters radically.At least, it should take earnest steps in that direction.What is important for those at the bottom of the economicpyramid is that they are not denied the opportunity for abetter life. If they, or at least their children, cannot evenlook forward to that, then a constitutional regime is nothingbut a mockery and a tragic illusion. Such a response,I am optimistic enough to believe, has the merit of thinning,if not completely eliminating, the embattled ranksand outposts of ignorance, fanaticism and error. That forme would be more in accordance with the basic propositionof our polity. This is not therefore to preach a doctrine of object surrender to the forces apparently bent on the adoption of a way of life so totally opposed to the deeply felt traditions of our people. This is, for me at least, an affirmation of the vitality of the democratic creed, with an expression of regret that it could not have been more impressively set forth in language worthy of the subject. It is in the light of the views above expressed that I find myself unable to yield concurrence to the ably-written opinion of Justice Castro for the Court sustaining the validity of the Anti-Subversion Act.

Separate Opinions FERNANDO, J., dissenting: It is with regard that I find myself unable to join therest of my brethren in the decision reached upholding thevalidity of the Anti-Subversion Act. 1 It is to be admittedthat the learned and scholarly opinbion of Justice Castro hasthe impress of conscientious and painstaking scrutiny ofthe constitutional issues raised. What is more, the stressin the concluding portion thereof on basic guidelines thatwill assure in the trial of those prosecuted under suchAct respect for their constitutional rights is to be commended.Nonetheless, my own reading of the decisionscited, interpreting the bill of attainder clause 2 coupled withthe fears, perhaps induced by a too-latitudinarian

constructionof the guarantees of freedom of belief and expression 3 as well as freedom of association 4 as to impermissible inroadsto which they may be exposed, compels a differentconclusion. Hence this dissent. 1. There is to be sure no thought on my part that theequally pressing concern of state safety and security shouldbe ignored. The political branches of the governmentwould lay themselves oepn to a justifiable indictment fornegligence had they been remiss in their obligation tosafeguard the nation against its sworn enemies. In a simplerera, where the overthrow of the government wasusually through the rising up in arms, with weapons farless sophisticated than those now in existence, there wasno constitutional issue of the magnitude that now confrontsus. Force has to be met with force. It was as clearcutas that. Advances in science as well as more subtlemethods of inducing disloyalty and weakening the senseof allegiance have introduced complexities in coping withsuch problems. There must be then, and I am the firstto recognize it, a greater understanding for the governmentalresponde to situations of that character. It is inthat light that the validity of the AntiSubversion Act isto be appraised. From ny standpoint, and I am not presumptuousenough to claim that it is the only perspectiveor that is the most realistic, I feel that there was an insufficientappreciation of the compulsion of the constitutionalcommands against bills of attainder and abridgmentof free speech. I am comforted by the thought that evenhad my view prevailed, all that it would mean is that anew legislation, more in comformity to my way of thinkingto what is ordained by the fundamental law, wouldhave to be enacted. No valid fear need be entertained thenthat a setback would be occasioned to legitilate state effortsto stem the tide of subversive activities, in whateverform manifested. 2. The starting point in any inquiry as to the significanceof the bill of attainder clause is the meaning attachedto it by the Constitutional Convention of 1934 and by the people who adopted it. As was explained by the then Delegate, later Justice, Jose P. Laurel in his address on November19, 1934 as Chairman of the Committee on the Bill of Rights quoted in the opinion of the Court: "A billof attainder is a legislative act which inflicts punishment without judicial trial. (Cummings v. United States, 4Wall. 277, 18 L ed 356). In England, the Bill of Attainder was an act of Parliament by which a man was tried, convictedand sentenced to death without a jury, without ahearing in court, without hearing the witnesses againsthim and without regard to the rules of evidence. His bloodwas attainted or corrupted, rendering him devoid of allheritable quality of acquiring and disposing property bydescent. (Ex parte Garland, 4 Wall. 333, 18 L ed. 366) If the penalty imposed was less than death, the act wasknown as a 'bill of pains and penalties.' Bills of attainder, like ex post facto laws, were favorite methods of Stuartoppression. Once, the name of Thomas Jefferson was includedin a bill of attainder presented to Parliament becauseof his reform activities." 5 Two American SupremeCourt decision were thus in the minds of the framers.They are Cummings v. Missouri 6 and Ex parte Garland. 7 They speak unequivocally. Legislative acts, no matter whattheir form, that apply either to named individuals or easilyascertainable members of a group in such a way as to inflicton them punishment amounting to a deprivation ofany right, civil or political, without judicial trial are billsof attainder prohibited by the Constitution. 8 Cummings v. Missouri 9 was a criminal prosecution ofa Catholic priest for refusing to take the loyalty oath requiredby the state Constitution of Missouri of 1865. Undersuch a provision, lawyers, doctors, ministers, and otherprofessionals must disavow that they had ever, "by act orword," manifested a "desire" for the success of the nation'senemies or a sympathy" with the rebels of the AmericanCivil War. If they swore falsely, they were guilty of perjury.If they engaged in their professions without theoath, they were criminally liable. The United States Supreme Court condemned the provision as a bill of attainder,identified as any legislative act inflicting punishment withoutjudicial trial. The deprivation of any right, civil orpolitical, previously enjoyed, amounted to a punishment.Why such a conclusion was unavoidable was explained inthe opinion of Justice Field thus: "A bill of attainder isa legislative act, which inflicts punishment without a judicialtrial. If the punishment be less than death, the actis termed a bill of pains and penalties. Within the meaningof the Constitution, bills of attainder

include bills ofpains and penalties. In these cases the legislative body, inaddition to its legitimate functions, exercises the powersand office of judge; it assumes, in the language of thetextbooks, judicial magistracy; it pronounces upon theguilt of the party, without any of the forms or safeguardsof trial; it determines the sufficiency of the proofs produced,whether conformable to the rules of evidence orotherwise; and it fixes the degree of punishment in accordancewith its own notions of the enormity of the offense. ... If the clauses of the 2d article of the Constitutionof Missouri, to which we have referred, had in termsdeclared that Mr. Cummings was guilty, or should be heldguilty, of having been in armed hostility to the UnitedStates, or of having entered that state to avoid beingenrolled or drafted into the military service of the UnitedStates, and, therefore, should be deprived of the right topreach as a priest of the Catholic church, or to teach inany institution of learning, there could be no question thatthe clauses would constitute a bill of attainder within themeaning of the Federal Constitution. If these clauses, insteadof mentioning his name, had declared that all priestsand clergymen within the state of Missouri were guiltyof these acts, or should be held guilty of them, and hencebe subjected to the like deprivation, the clause would beequally open to objection. And further, it these clauseshad declared that all such priests and clergymen shouldbe so held guilty, and be thus deprived, provided they didnot, by a day designated, do certain specified acts, theywould be no less within the inhibition of the Federal Constitution.In all these cases there would be the legislativeenactment creating the deprivation, without any of theordinary forms and guards provided for the security ofthe citizen in the administration of justice by the establishedtribunales." 10 On the very same day that the ruling in Cummings washanded down, Ex parte Garland 11 was also decided. Thatwas a motion for leave to practrice as an attorney beforethe American Supreme Court. Petitioner Garland wasadmitted to such bar at the December term of 1860. Underthe previous rules of such Court, all that was necessarywas that the applicant have three years practice in the statecourts to which he belonged. In March 1865, the rule waschanged by the addition of a clause requiring that an oathbe taken under the Congressional acts of 1862 and 1865to the effect that such candidate for admission to the barhad never voluntarily borne arms against the UnitedStates. Petitioner Garland could not in conscience subscribeto such an oath, but he was able to show a presidentialpardon extended on July 15, 1865. With such actof clemency, he moved that he be allowed to continue inpractice contending that the test oath requirement wasunconstitutional as a bill of attainder and that at any rate,he was pardoned. The same ruling was announced by theCourt again through Justice Field. Thus: "In the exclusionwhich the statute adjudges, it imposes a punishmentfor some of the acts specified which were not punishableat the time they were committedl; and for other of the actsit adds a new punishment to that before prescribed, andit is thus brought within the further inhibition of the Consitutionagainst the passage of an ex post facto law. Inthe case of Cummings v. Missouri, just decided, ... wehave had occasion to consider at length the meaning of abill of attainder and of an ex post facto law in the clauseof the Constitution forbidding their passage by the states,and it is unnecessary to repeat here what we there said.A like prohibition is contained in the Constitution againstenactments of this kind by Congress; and the argumentpresented in that case against certain clauses of the Constitutionof Missouri is equally applicable to the act ofCongress under consideration in this case."12 There was a reiteration of the Cummings and Garlanddoctrine in United States v. Lovett, 13 decided in 1946.There it was shown that in 1943 the respondents, Lovett,Watson, and Dodd, were and had been for several yearsworking for the government. The government agencies,which had lawfully employed them, were fully satisfiedwith the quality of their work and wished to keep thememployed on their jobs. Over their protest, Congress providedin Section 304 of the Urgent Deficiency AppropriationAct of 1943, by way of an amendment attached to theHouse Bill, that after November 15, 1943, no salary orcompensation should be paid respondent out of any moneythen or thereafter appropriated except for services as jurorsor members of the armed forces, unless they wereprior to November 15, 1943, again appointed to jobs bythe President with the advide and consent of the Senate.Notwithstanding such Congressional enactment, and thefailure of the President to reappoint the respondents, theagencies, kept all the respondents at work on their jobs forvarying periods after

November 15, 1943, but their compensationwas discontinued after that date. Respondentsbrought this action in the Court of Claims for the salariesto which they felt entitled. The Ameican Supreme Courtstated that its inquiry was thus confined to whether theaction in the light of proper construction of the Act presenteda justificiable controversy, and, if so, whether Section304 is a bill of attainder insofar as the respondents wereconcerned. After holding that there was a juditiciable, view theAmerican Supreme Court in an opinion by Justice Blackcategorically affirmed: "We hold that Section 304 fallsprecisely within the category of Congressional actionswhich the Constitution barred by providing that 'No Billof Attainder or ex post Law shall be passed.' InCummings v. State of Missouri, ... this Court said, 'Abill of attainder is a legislative act which inflicts punishmentwithout a judicial trial. If the punishment be lessthan death, the act is termed a bill of pains and penalties.Within the meaning of the Constitution, bills of attainderinclude bills of pains and penalties.' ... On the sameday the Cummings case was decided, the Court, in Exparte Garland, also held invalid on the same grounds anAct of Congress which required attorneys practicing beforethis Court to take a similar oath. Neither of thesecases has ever been overruled. They stand for the propositionthat legislative acts, no matter what their form,that apply either to named individuals or to easily ascertainablemembers of a group in such a way as to inflictpunishment on them without a judicial trial are billsof attainder prohibited by the Constitution. Adherenceto this principle requires invalidation of Section 304. Wedo adhere to it." 14 United States v. Brown 15 a 1965 decision was the firstcase to review a conviction under the LaborManagementReporting and Disclosure Act of 1959, making it a crimefor a member of the Communist Party to serve as anofficer ir, except in clerical or custodial positions, anemployee of a labor union. Respondent Brown, a longshoremanon the San Francisco docks, and an open andavowed Communist, for more than a quarter of a centurywas elected to the Executive Board of Local 10 of theInternational Longshoremen's and Warehousemen's Unionfor consecutive one-year terms in 1959, 1960, and 1961.On May 24, 1961, respondent was charged in a one-countindictment returned in a district court of California withservicing as a member of an executive board of a labororganization while a member of the Communist Party, inwillful violation of the above provision. The question ofits validity under the bill of attainder clause was thusproperly raised for adjudication. While convicted in thelower court, the Court of Appeals for the Ninth Circuitreversed. It was sustained by the American SupremeCourt. As noted in the opinion by Chief Justice Warren,"the wide variation in form, purpose and effect of ante-Constitutionbills of attainder indicates that the properscope of the Bill of Attainder Clause, and its relevance tocontemporary problems, must ultimately be sought by attemptingto discern the reasons for its inclusion in theConstitution, and the evils it was desinged to eliminate.The best available evidence, the writings of the architectsof our constitutional system, indicates that the Bill ofAttainder Clause was inteded not as a narrow, technical(and therefore soon to be outmoded) prohibition, but ratheras an implementation of the separation of powers, ageneral safeguard against legislative exercise of the judicialfunction, or more simply trial by legislature." 16 Then after referring to Cummings, Garland, and Lovett,Chief Justice Warren continued: "Under the line of casesjust outlined, Sec. 504 of the Labor Management Reportingand Disclosure Act plainly constitutes a bill of attainder. Congress undoubtedly possesses power under theCommerce Clause to enact legislation designed to keepfrom positions affecting interstate commerce persons whomay use such positions to bring about political strikes. In Sec. 504, however, Congress has exceeded the authoritygranted it by the Constitution. The statute does not setforth a generally applicable rule decreeing that any personwho commits certain acts or possesses certain characteristics (acts and characteristics whhich, in Congress'view, make them likely to initiate political strikes) shallnot hold union office, and leave to courts and juries thejob of deciding what persons have committed the specifiedacts or possessed the specified characteristics. Instead,it designates in no uncertain terms the personswho possess the fearec characteristics and therefore cannothold union office without incurring criminal liability members of the Communist Party." 17

Even Communist Party v. Subversive Activities ControlBoard, 18 where the provision of the Subversive ActivitiesControl Act of 1950 requiring the Communist Party ofthe United States to register was sustained, the opinionof Justice Frankfurter for the Court, speaking for a fivemanmajority, did indicate adherence to the Cummingsprinciple. Had the American Communist Party been outlawed,the outcome certainly would have been different.Thus: "The Act is not a bill of attainder. It attaches notto specified organizations but to described activities inwhich an organization may or may not engage. The singlingout of an individual for legislatively prescribed punishmentconstitutes an attainder whether the individualis called by name or described in terms of conduct which,because it is past conduct, operates only as a designationof particular persons. ... The Subversive Activities ControlAct is not of that king. It requires the registrationonly of organizations which, after the date of the Act,are found to be under the direction, domination, or controlof certain foreign powers and to operate primarily toadvance certain objectives. This finding must be madeafter full administrative hearing, subject to judicial reviewwhich opens the record for the reviewing court'sdetermination whether the administrative findings as tofact are supported by the preponderance of the evidence.Present activity constitutes an operative element to whichthe statute attaches legal consequences, not merely a pointof reference for the ascertainment of particularly personsineluctably designated by the legislature." 19 The teaching of the above cases, which I find highlypersuasive considering what appeared to be in the mindsof the framers of the 1934 Constitutional Conventionyields for me the conclusion that the Anti-SubversionAct falls within the ban of the bill of attainder clause. Itshould be noted that three subsequent cases upholding theCummings and Garland doctrine were likewise cited in theopinion of the Court. The interpretation accorded to themby my brethren is, of course, different but I am unable togo along with them especially in the light of the categoricallanguage appearing in Lovett. This is not to lose sightof the qualification that for them could deprive such aholding of its explicit character as shown by this excerptfrom the opinion of the Court: "Indeed, were the Anti-SubversionAct a bill of attainder it would be totally unnecessaryto charge communists in court, as the law alone,without more, would suffice to secure their conviction andpunishment. But the fact is that their guilt still has to bejudicially estblished. The Government has yet to proveat the trial that the accused joined the Party knowingly,willfully and by overt acts, and that they joined the Partyknowing its subversive character and with specific intentto further its objective, i.e., to overthrow the existing Governmentby force, deceit, and other illegal means and placeit under the control and domination of a foreign power. 20While not implausible, I find difficulty in yielding acceptance.In Cummings, there was a criminal prosecution ofthe Catholic priest who refused to take the loyalty oath.Again in Brown, there was an indictment of the laborleader who, judging by his membership in the CommunistParty, did transgress the statutory provision subsequentlyfound offensive to the bill attainder clause. If the constructionI would place on theoff-repeated pronouncementof the American Supreme Court is correct, then the merefact that a criminal case would have to be instituted wouldnot save the statute. It does seem clear to me that fromthe very title of the Anti-Subversion Act, "to outlaw the Communist Party of the Philippines and similar associations,"not to mention other specific provisions, the taintof invalidity is quite marked. Hence, my inability to concurin the judgment reached as the statute not suffering fromany fatal infirmity in view of the Constitutional prohibitionagainst bills of attainder. 3. This brings me to the question of the alleged repugnancyof the Anti-Subversion Act to the intellectual libertysafeguarded by the Constitution in terms of the free speechand free assocition guarantees. 21 It is to be admitted thatat the time of the enactment of Republic Act No. 1700,the threat that Communism, the Russian brand then, didpose was a painful reality for Congressional leaders andthe then President. Its shadow fell squarely across thelives of all. Subversion then could neither be denied notdisparaged. There was, in the expert opinion of those conversantwith such mattes, a danger to out national existenceof no mean character. Nonetheless, the remedies toward off such menace must not be repugnant to our Constitution.We are legally precluded from acting in anyother way. The apprehension justly felt is no warrant forthrowing to the discard fundamental guarantees. Vigilantwe had to be, but not at the expense of constitutional ideals.

One of them, certainly highly-prized of the utmost significance,is the right to dissent. One can differ, evenobject; one can express dissatisfaction with things as theyare. There are timew when one not only can but must.Such dissent can take the form of the most critical andthe most disparaging remarks. They may give offense tothose in authority, to those who wield powe and influence.Nevertheless, they are entitled to constitutional protection.Insofar as the content of such dissent is concerned, thelimits are hardly discernible. It cannot be confined totrivial matters or to such as are devoid of too much significance.It can reach the heart of things. Such dissentmay, for those not so adventurous in the realm of ideas,possess a subversive tinge. Even those who oppose a democraticform of government cannot be silenced. This is trueespecially in centers of learning where scholars competentin their line may, as a result of their studies, assert thata future is bleak for the system of government now favoredby Western democracies. There may be doubts entertainedby some as to the lawfulness of their exercisingthis right to dissent to the point of advocary of such adrastic change. Any citizen may do so without fear thatthereby he incurs the risk of a penal sanction. That ismerely to affirm the truth of this ringing declaration fromJefferson: "If there be any among us who would wish todissolve this union or to change its republican form, letthem stand undisturbed as monuments of the safety withwhich error of opinion may be tolerated where reason isleft free to combat it." 22 As was so well put by the philosopher,Sidney Hook: "Without holding the right to theexpression of heresy at any time and place to be absolute for even the right to non-heretical speech cannot beabsolute it still seems wise to tolerate the expression evenof Communist, fascist and other heresies, lest in outlawingthem we include other kings of heresies, and deprive ourselvesof the opportunity to acquite possibly sounder ideasthan our own." 23 The line is to be drawn, however, where the wordsamount to an incitement to commit the crime of seditionor rebellion. The state has been reached, to follow theformulation of Cardozo, where thought merges into action.Thus is loyalty shown to the freedom of speech or pressordained by the Constitution. It does not bar the expressionof views affecting the very life of the state, even ifopposed to its fundamental presuppositions. It allows, ifit does not require as a matter of fact, that unorthodoxideas be freely ventilated and fully heard. Dissent is notdisloyalty. Such an approach is reinforced by the well-settled constitutionalprinciple "that even though the governmental purposesbe legitimate and substantial, they cannot be pursuedby means that broadly stifle fundamental personalliberties when the end can be more narrowly achieved.For precision of regulation is the touchstone in an areaso closely related to our most precious freedoms." 24 This is so for "a governmental purpose to control or prevent activities constitutionally subject to state regulation may notbe achieved by means which sweep unnecessarily broadlyand thereby invade the area of protected freedoms." 25 It isindispensable then that "an over breadth" in the applicabilityof the statute be avoided. If such be the case, then theline dividing the valid from the constitutionally infirm hasbeen crossed. That for me is the conclusion to be drawnfrom the wording of the Anti-Subversion Act. There is to my mind support for the stand I take inthe dissent of Justice Black in the Communist Party casediscussed above. What is to be kept in view is that a legislativemeasure certainly less drastic in its treatment ofthe admittedly serious Communist problem was found inthe opinion of this noted jurist offensive to the FirstAmendment of the American Constitution safeguardingfree speech. Thus: "If there is one thing certain aboutthe First Amendment it is that this Amendment was designedto guarantee the freest interchange of ideas aboutall public matters and that, of course, means the interchangeof all ideas, however such ideas may be viewed inother countries and whatever change in the existing structureof government it may be hoped that these ideas willbring about. Now, when this country is trying to spreadthe high ideals of democracy all over the world ideals that are revolutionary in many countries seems to be aparticularly inappropriate time to stifle First Amendmentfreedoms in this country. The same arguments that areused to justify the outlawry of Communist ideas here couldbe used to justify an outlawry of the ideas of democracyin other countries." 26 Further he stated: "I believe with theFramers of the First Amendment that the

internal securityof a nation like ours does not and cannot be made todepend upon the use of force by Government to make allthe beliefs and opinions of the people fit into a commonmold on any single subject. Such enforced conformity ofthought would tend only to deprive our people of the boldspirit of adventure and progress which has brought thisNation to its present greatness. The creation of publicopinion by groups, organizations, societies, clubs, and partieshas been and is a necessary part of our democraticsociety. Such groups, like the Sons of Liberty and theAmerican Corresponding Societies, played a large part increating sentiment in this country that led the people ofthe Colonies to want a nation of their own. The Father ofthe Constitution James Madison said, in speakingof the Sedition Act aimed at crushing the Jefferson Party,that had that law been in effect during the period beforethe Revolution, the United States might well have continuedto be 'miserable colonies, groaning under a foreign yoke.'In my judgment, this country's internal security can betterbe served by depending upon the affection of the peoplethan by attempting to instill them with fear and dreadof the power of Government. The Communist Party hasnever been more than a small group in this country. Andits numbers had been dwindling even before the Governmentbegan its campaign to destroy the Party by force oflaw. This was because a vast majority of the Americanpeople were against the Party's policies and overwhelminglyrejected its candidates year after year. That is the trueAmerican way of securing this Nation against dangerousideas. Of course that is not the way to protect the Nationagainst actions of violence and treason. The Foundersdrew a distinction in our Constitution which we would bewise to follow. They gave the Government the fullest powerto prosecute overt actions in violation of valid lawsbut withheld any power to punish people for nothing morethan advocacy of their views." 27 With the sentiments thus expressed uppermost in mymind and congenial to my way of thinking, I cannot sharethe conclusion reached by my breathren as to the Anti-Subversion Act successfully meeting the test of validity onfree speech and freedom of association grounds. 4. It could be that this approach to the constitutionalquestions involved arises from an appraisal of the challengedstatute which for me is susceptible of an interpretationthat it does represent a defeatist attitude on thepart of those of us, who are devotees at the shrine of aliberal-democratic state. That certainly could not havebeen the thought of its framers; nonetheless, such an assumptionis not devoid of plausibility for why resort tothis extreme measure susceptible as it is to what apparentlyare not unfounded attacks on constitutional grounds?Is this not to ignore what previously was accepted as anobvious truth, namely that the light of liberalism sendsits shafts in many directions? It can illuminate, and itcan win the hearts and minds of men. It if difficult forme to accept the view then that a resort to outlawry isindispensable, that suppression is the only answer to whatis an admitted evil. There could have been a greater exposureof the undesirability of the communist creed, itscontradictions and arbitrarines, its lack of fealty to reason,its inculcation of disloyalty, and its subservience tocentralized dictation that brooks no opposition. It is thus,in a realistic sense, a manifestation of the fear of freethought and the will to suppress it. For better, of course,is the propaganda of the deed. What the communists promise,this government can fulfill. It is up to it then to takeremedial measures to alleviate the condition of our countrymenwhose lives are in a condition of destitution andmisery. It may not be able to change matters radically.At least, it should take earnest steps in that direction.What is important for those at the bottom of the economicpyramid is that they are not denied the opportunity for abetter life. If they, or at least their children, cannot evenlook forward to that, then a constitutional regime is nothingbut a mockery and a tragic illusion. Such a response,I am optimistic enough to believe, has the merit of thinning,if not completely eliminating, the embattled ranksand outposts of ignorance, fanaticism and error. That forme would be more in accordance with the basic propositionof our polity. This is not therefore to preach a doctrine of object surrender to the forces apparently bent on the adoption of a way of life so totally opposed to the deeply felt traditions of our people. This is, for me at least, an affirmation of the vitality of the democratic creed, with an expression of regret that it could not have been more impressively set forth in language worthy of the subject.

It is in the light of the views above expressed that I find myself unable to yield concurrence to the ably-written opinion of Justice Castro for the Court sustaining the validity of the Anti-Subversion Act.

370 People vs. Ferrer [GRs L-32613-14, 27 December 1972] First Division, Castro (J): 5 concur, 12 took no part, 1 dissented in a separate opinion Facts: On 5 March 1970 a criminal complaint for violation of section 4 of the AntiSubversion Act was filed against Feliciano Co in the Court of First Instance (CFI) of Tarlac. On March 10, Judge Jose C. de Guzman conducted a preliminary investigation and, finding a prima facie case against Co, directed the Government prosecutors to file the corresponding information. The twice-amended information (Criminal Case 27), recites "That on or about May 1969 to December 5, 1969, in the Municipality of Capas, Province of Tarlac, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, feloniously became an officer and/or ranking leader of the Communist Party of the Philippines, an outlawed and illegal organization aimed to overthrow the Government of the Philippines by means of force, violence, deceit, subversion, or any other illegal means for the purpose of establishing in the Philippines a totalitarian regime and placing the government under the control and domination of an alien power, by being an instructor in the Mao Tse Tung University, the training school of recruits of the New People's Army, the military arm of the said Communist Party of the Philippines. That in the commission of the above offense, the following aggravating circumstances are present, to wit: (a) That the crime has been committed in contempt of or with insult to public authorities; (b) That the crime was committed by a band; and (c) With the aid of armed men or

persons who insure or afford impunity." Co moved to quash on the ground that the Anti-Subversion Act is a bill of attainder. Meanwhile, on 25 May 1970, another criminal complaint was filed with the same court, charging Nilo Tayag and five others with subversion. After preliminary investigation was had, an information was filed. On 21 July 1970 Tayag moved to quash, impugning the validity of the statute on the grounds that (1) Republic Act 1700 is a bill of attainder; (2) it is vague; (3) it embraces more than one subject not expressed in the title thereof; and (4) it denies him the equal protection of the laws. Resolving the constitutional issues raised, the trial court, in its resolution of 15 September 1970, declared the statute void on the grounds that it is a bill of attainder and that it is vague and overbroad, and dismissed the informations against the two accused. The Government appealed. The Supreme Court resolved to treat its appeal as a special civil action for certiorari. Issue: Whether the Anti-Subversion Law partakes of the nature of a Bill of Attainder. Held: Article III, section 1 (11) of the Constitution states that "No bill of attainder or ex post facto law shall be enacted." A bill of attainder is a legislative act which inflicts punishment without trial. Its essence is the substitution of a legislative for a judicial determination of guilt. The constitutional ban against bills of attainder serves to implement the principle of separation of powers by confining legislatures to rule-making and thereby forestalling legislative usurpation of the judicial function. History in perspective, bills of attainder were employed to suppress unpopular causes and political minorities, and it is against this evil that the

constitutional prohibition is directed. The singling out of a definite class, the imposition of a burden on it, and a legislative intent, suffice to stigmatize a statute as a bill of attainder. Herein, when the Anti-Subversion Act is viewed in its actual operation, it will be seen that it does not specify the Communist Party of the Philippines Constitutional Law II, 2005 ( 3 )Narratives (Berne Guerrero) or the members thereof for the purpose of punishment. What it does is simply to declare the Party to be an organized conspiracy for the overthrow of the Government for the purposes of the prohibition, stated in section 4, against membership in the outlawed organization. The term "Communist Party of the Philippines" is used solely for definitional purposes. In fact the Act applies not only to the Communist Party of the Philippines but also to "any other organization having the same purpose and their successors." Its focus is not on individuals but on conduct. Were the Anti-Subversion Act a bill of attainder, it would be totally unnecessary to charge Communists in court, as the law alone, without more, would suffice to secure their punishment. But the undeniable fact is that their guilt still has to be judicially established. The Government has yet to prove at the trial that the accused joined the Party knowingly, willfully and by overt acts, and that they joined the Party, knowing its subversive character and with specific intent to further its basic objective, i.e., to overthrow the existing Government by force, deceit, and other illegal means and place the country under the control and domination of a foreign power. Further, the statute specifically requires that membership must be knowing or active, with specific intent to further the illegal objectives of the Party. That

is what section 4 means when it requires that membership, to be unlawful, must be shown to have been acquired "knowingly, willfully and by overt acts." The ingredient of specific intent to pursue the unlawful goals of the Party must be shown by "overt acts." This constitutes an element of "membership" distinct from the ingredient of guilty knowledge. The former requires proof of direct participation in the organization's unlawful activities, while the latter requires proof of mere adherence to the organization's illegal objectives. Even assuming, however, that the Act specifies individuals and not activities, this feature is not enough to render it a bill of attainder. It is only when a statute applies either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial does it become a bill of attainder. Nor is it enough that the statute specify persons or groups in order that it may fall within the ambit of the prohibition against bills of attainder. It is also necessary that it must apply retroactively and reach past conduct. This requirement follows from the nature of a bill of attainder as a legislative adjudication of guilt. Indeed, if one objection to the bill of attainder is that Congress thereby assumes judicial magistracy, then it must be demonstrated that the statute claimed to be a bill of attainder reaches past conduct and that the penalties it imposes are inescapable. Section 4 of Anti-Subversion Act expressly states that the prohibition therein applies only to acts committed "After the approval of this Act." Only those who "knowingly, willfully and by overt acts affiliate themselves with, become or remain members

of the Communist Party of the Philippines and/or its successors or of any subversive association" after 20 June 1957, are punished. Those who were members of the Party or of any other subversive association at the time of the enactment of the law, were given the opportunity of purging themselves of liability by renouncing in writing and under oath their membership in the Party. The law expressly provides that such renunciation shall operate to exempt such persons from penal liability. The penalties prescribed by the Act are therefore not inescapable.
G.R. No. 70443 September 15, 1986 BRAULIO CONDE, RUFINA CONDE, GERARDO CONDE, CONCHITA C. LUNDANG, and ALFREDO VENTURA,petitioners, vs. INTERMEDIATE APPELLATE COURT, HON. CESAR C. PERALEJO, in his capacity as Presiding Judge, Regional Trial Court, Branch LXVI, Third Judicial Region, Capas, Tarlac, and MARCELO GUTIERREZ,respondents. Tomas P. Matic, Jr. for petitioners. Adelaido G. Rivera for private respondent.

GUTIERREZ, JR., J.:

On January 16, 1984, the petitioners filed an action to annul the judgment of the Court of Appeals dated September 23, 1981, which reversed the decision of the Regional Trial Court and ordered the petitioners and/or their successors-in-interest to deliver immediately the ownership and possession of the property in question to the then plaintiff-appellant Marcelo Gutierrez. In their complaint filed before the Regional Trial Court of Capas, Tarlac, the petitioners alleged that through fraud, Gutierrez was able to make it appear that he was the son of Esteban Gutierrez and Fermina Ramos and as a necessary consequence of such filiation, was the absolute owner by succession of the property in question. On February 27, 1984, the trial court dismissed the petitioners' complaint on the ground that it had no jurisdiction to annul the judgment of the Court of Appeals. Upon the denial of their motion for reconsideration, the petitioners filed a petition for certiorari, mandamus and a writ of injunction before the appellate court. The said court in turn, dismissed the petition and a subsequent motion for reconsideration on the grounds that a Regional Trial Court is without jurisdiction to annul the judgment of the Court of Appeals and that only the Supreme Court is empowered to review the judgment of said appellate court. Hence, the petitioners elevated the case before this Court.

On August 31, 1984, we issued a resolution dated August 22, 1984, remanding the case to the appellate court for decision on the merits. The resolution reads as follows: The respondent intermediate Appellate Court erred when it declared that the complaint for annulment of judgment in this case should be filed with the Supreme Court. This Court has no original jurisdiction to look into allegations of fraud upon which the complaint for annulment is based. In January, 1984, the petitioners filed a complaint with the Regional Trial Court of Tarlac seeking among other things the annulment of a decision which had already passed, on appeal, the Court of Appeals in CA-G.R. No. 60139-R. On February 17, 1984, the lower court dismissed the petitioners' complaint for annulment of judgment. The petitioners appealed the dismissal to the respondent Intermediate Appellate Court which denied due course to the petition stating that what is sought to be annulled is a decision of the Court of Appeals over which the regional trial court is obviously without jurisdiction. The decision sought to be annulled calls for the turning over of possession to the original respondent of the disputed properties. While the judgment being enforced may have been that of the Court of Appeals, it was actually an appellate judgment rendered on a review of the trial court's decision. Considering that Section 9 of the Judiciary Reorganization Act of 1980-B.P. No. 129 gives the Intermediate Appellate Court exclusive jurisdiction over actions for annulment of judgments of regional trial courts, the COURT RESOLVED to REMAND this case to the Intermediate Appellate Court for it to hear and decide the action. On January 29, 1985, the appellate court rendered a decision dismissing the petition for lack of jurisdiction and for lack of merit. In its decision on the issue of jurisdiction, the respondent court ruled that since the decision of the Metropolitan Trial Court can be annulled by the Regional Trial Court and a decision of the latter is annullable by the Court of Appeals, then logically the decision of the appellate court should be annullable only by the Supreme Court. Moreover, the appellate court ruled that it is but logical to conclude that it cannot annul its own decision unless there is an express grant under the Judiciary Reorganization Act of 1980. Finding none, it stated that it must perforce dismiss the case for lack of jurisdiction. On the merits of the petition, the appellate court ruled that the fraud relied upon by the petitioners is only intrinsic and thus, even on the assumption that it has jurisdiction to decide the case, still the same has no merit. It dismissed the petition. The petitioners elevated this decision to us. On June 5, 1985, we resolved to require the respondents to comment on the petition. Notwithstanding proof that a copy of the petition was served on the respondents' counsel on June 24, 1985, no comment has been filed. We decide the petition. We need not emphasize the rule that this Court decides appeals which only involve questions of law and that "it is not the function of the Supreme Court to analyze or weigh such evidence all over again, its jurisdiction being limited to receiving errors of law that might have been committed by the lower court." (Baniqued v. Court of Appeals, 127 SCRA 596, 601; citing Tiongco v. de la Merced, 58 SCRA 89). It was, thus, totally pointless for the Intermediate Appellate Court to delve into the question of whether or not it has jurisdiction to pass upon the merits of the petition which then alleged the perpetration of fraud by one of the parties in the original case, and which thereby called for a review of the factual findings of the court. Furthermore, the fact that this Court already

remanded the case to the appellate court for decision on the merits should have prompted the latter to limit its decision only to the merits of the case. There are instances when this Court desires a further review of facts or a detailed analysis and systematic presentation of issues which the appellate court is in a more favored position to accomplish. Standing between the trial courts and the Supreme Court, the appellate court was precisely created to take over much of the work that used to be previously done by this Court. It has been of great help to the Supreme Court in synthesizing facts, issues, and rulings in an orderly and intelligible manner and in Identifying errors which ordinarily might have escaped detection. Statistics will show that the great majority of petitions to review the decisions of the appellate court have been denied due course for lack of merit in minute resolutions. The appellate court has, therefore, freed this Court to better discharge its constitutional duties and perform its most important work which, in the words of Dean Vicente G. Sinco, "is less concerned with the decision 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." (Philippine Political Law, 10th Edition, p. 323). It is, therefore, difficult to understand why a Division of the Intermediate Appellate Court should hesitate to help the Supreme Court and to act on an action which it was specifically ordered to hear and decide. If its initial hesitation was due to doubts about the correctness of our action, then it should recall the admonition inTugade v. Court of Appeals (85 SCRA 226, 230-231) that: xxx xxx xxx Respondent Court of Appeals really was devoid of any choice at all It could not have ruled in any other way on the legal question raised. This Tribunal having spoken, its duty was to obey. It is as simple as that. There is relevance to this excerpt from Barrera v. Barrera (34 SCRA 98): 'The delicate task of ascertaining the significance that attaches to a constitutional or statutory provision, an executive order, a procedural norm or a municipal ordinance is committed to the judiciary. It thus discharges a role no less crucial than that appertaining to the other two departments in the maintenance of the rule of law. To assure stability in legal relations and avoid confusion, it has to speak with one voice. It does so with finality, logically and rightly, through the highest judicial organ, this Court. What it says then should be definitive and authoritative, binding on those occupying the lower ranks in the judicial hierarchy. They have to defer and to submit.' (Ibid. 107. The opinion of Justice Laurel in People v. Vera, 65 Phil. 56 [1937] was cited.) The ensuing paragraphs of the opinion in Barrera further emphasizes the point: 'Such a thought was reiterated in an opinion of Justice J.B.L. Reyes and further emphasized in these words: 'Judge Gaudencio Cloribel need not be reminded that the Supreme Court, by tradition and in our system of judicial administration, has the last word on what the law is it is the final arbiter of any justifiable controversy. There is only one Supreme Court from whose decisions an other courts should take their bearings. (Justice J.B.L. Reyes spoke thus in Albert v. Court of First Instance of Manila [Br. VI], 23 SCRA 948, 961). The fault of the Intermediate Appellate Court is mitigated by the fact that it still decided the remanded case on the merits. It stated:

On February of 1950 an original complaint for recovery of possession of a parcel of land was filed before the Court of First Instance of Tarlac, which was subsequently amended on March 19, 1951. On May 20, 1976, after a full blown trial the Regional Trial Court Branch 64 (formerly Court of First Instance) of Tarlac, rendered a decision dismissing the complaint and ordering plaintiff Marcelo Gutierrez to pay the defendants the costs of the suit. The dispositive portion of which reads as follows: WHEREFORE, judgment is hereby rendered dismissing the complaint and ordering plaintiff Marcelo Gutierrez to pay the defendants the costs of this suit. He (sic) pronouncement as to damages for want of proof. From the above judgment an appeal was filed with the Court of Appeals. On September 23, 1981, the then Court of Appeals reversed the decision of the Regional Trial Court, Branch 64, this time ordering the ten appellees (now petitioners) to deliver the ownership and possession of the litigated property to then appellant (now respondent Marcelo Gutierrez), which decision became final and executory on December 20, 1982, the dispositive portion of which reads, as follows: WHEREFORE, in the light of the foregoing, the decision appealed from, not being in accordance with the applicable law and evidence and finding validity in the errors assigned, is hereby reversed and set aside. In lieu thereof, another one is entered ordering defendants-appellees and/or their successors-in-interest to deliver immediately the ownership and possession of the property described under par. 3 of the complaint to herein plaintiff- appellant Marcelo Gutierrez. With costs. On January 16, 1984, an action to annul the judgment of the former Court of Appeals was filed before the Regional Trial Court, Branch 56, Third Judicial Region in Capas, Tarlac. On February 27, 1984, the respondent Court (Regional Trial Court), dismissed the case for annulment of judgment on the ground that it has no jurisdiction to annul the judgment of the Court of Appeals. On March 19, 1984, the motion for reconsideration filed by herein petitioner was denied by the respondent court. Accordingly, a petition for certiorari, mandamus and a writ of injunction was filed before the Intermediate Appellate Court and raffled to the Third Special Cases Division, The court dismissed the petition for lack of merit on the ground that a Regional Trial Court is without jurisdiction to annul a judgment of the Intermediate Appellate Court, the dispositive portion of which reads: WHEREFORE, this case should be, as it is hereby DISMISSED OUTRIGHT. With costs against the petitioners. On June 14, 1984, the motion for reconsideration filed by herein petitioner was denied by this Court. xxx xxx xxx

Finally, a judgment based on alleged false testimony is not an extrinsic fraud by which an action for annulment of judgment could be grounded. The Supreme Court in Ilacad v. Court of Appeals (supra, p. 302), declared that: xxx xxx xxx ... and speaking of extrinsic fraud, it is that fraudulent scheme of the prevailing litigant which prevents a party from having his day in court from presenting his case. Fraud has been regarded as extrinsic or collateral, within the meaning of the rule 'where it is one of the effect of which prevents a party from having a trial, or real contests, or from presenting all of his case to the court, or where it operates upon matters pertaining not to the judgment itself, but to the manner by which it was procured so that there is not a fair submission of the controversy. In other words, extrinsic fraud refers to any fraudulent act of the prevailing party in the litigation which is committed outside of the trial of the case, where the defeated party has been prevented from presenting fully his side of the case, by fraud or deception practiced on him by his opponent. The resort to fraud in introducing fabricated evidence is definitely an intrinsic fraud, hence false testimony being a matter of evidence is definitely intrinsic and not extrinsic. Fraud consisting in acting fictitious cause of false testimony is intrinsic (sic) (Francisco v. David, 38 CG 714). Intrinsic fraud takes the form of acts of a party in a litigation during the trial such as the use of forged instruments or perjured testimony, which did not affect the presentation of the case, but did prevent a fair and just determination of the case (Libudan v. Palma, [S1, 45 SCRA 17]). Intrinsic fraud is not sufficient to attack a judgment (Yatco v. Sumagui, 44623-R, July 31, 1971). Petitioners stand that extrinsic fraud was employed by the respondents, is bereft of any factual basis, hence, even on the assumption that this court has jurisdiction to decide this issue, still the petitioners cause of action must fail. A careful review of the present petition and of the records of the appellate court on this case shows that even on the assumption that all the facts alleged in the petition are true, the petition should be dismissed for lack of merit because the fraud allegedly perpetrated by the private respondent in ACG.R. SP No. 03301 is only intrinsic in nature and not extrinsic. Fraud is regarded as extrinsic or collateral where it has prevented a party from having a trial or from presenting an of his case to the court. (Asian Surety and Insurance Co. v. Island Steel, Inc., 118 SCRA 233, 239; citing Amuran v. Aquino, 38 Phil. 29). In the case at bar, the fraud was in the nature of documents allegedly manufactured by Marcelo Gutierrez to make it appear that he was the rightful heir of the disputed property, Hence, the Intermediate Appellate Court is correct in finding the fraud to be intrinsic in nature. WHEREFORE, the petition is hereby DISMISSED for lack of merit. The respondents' counsel, Atty. Adelaido G. Rivera is fined Five Hundred Pesos (P500.00) for his failure to act on the order to file comment. SO ORDERED. Feria (Chairman), Fernan, Alampay and Paras, JJ., concur,

G.R. No. L-114783 December 8, 1994 ROBERT V. TOBIAS, RAMON M. GUZMAN, TERRY T. LIM, GREGORIO D. GABRIEL, and ROBERTO R. TOBIAS, JR. petitioners, vs. HON. CITY MAYOR BENJAMIN S. ABALOS, CITY TREASURER WILLIAM MARCELINO, and THE SANGGUNIANG PANLUNGSOD, all of the City of Mandaluyong, Metro Manila, respondents. Estrella, Bautista & Associates for petitioners.

BIDIN, J.: Invoking their rights as taxpayers and as residents of Mandaluyong, herein petitioners assail the constitutionality of Republic Act No. 7675, otherwise known as "An Act Converting the Municipality of Mandaluyong into a Highly Urbanized City to be known as the City of Mandaluyong." Prior to the enactment of the assailed statute, the municipalities of Mandaluyong and San Juan belonged to only one legislative district. Hon. Ronaldo Zamora, the incumbent congressional representative of this legislative district, sponsored the bill which eventually became R.A. No. 7675. President Ramos signed R.A. No. 7675 into law on February 9, 1994. Pursuant to the Local Government Code of 1991, a plebiscite was held on April 10, 1994. The people of Mandaluyong were asked whether they approved of the conversion of the Municipality of Mandaluyong into a highly urbanized city as provided under R.A. No. 7675. The turnout at the plebiscite was only 14.41% of the voting population. Nevertheless, 18,621 voted "yes" whereas 7,911 voted "no." By virtue of these results, R.A. No. 7675 was deemed ratified and in effect. Petitioners now come before this Court, contending that R.A. No. 7675, specifically Article VIII, Section 49 thereof, is unconstitutional for being violative of three specific provisions of the Constitution. Article VIII, Section 49 of R.A. No. 7675 provides: As a highly-urbanized city, the City of Mandaluyong shall have its own legislative district with the first representative to be elected in the next national elections after the passage of this Act. The remainder of the former legislative district of San Juan/Mandaluyong shall become the new legislative district of San Juan with its first representative to be elected at the same election. Petitioner's first objection to the aforequoted provision of R.A. No. 7675 is that it contravenes the "one subject-one bill" rule, as enunciated in Article VI, Section 26(1) of the Constitution, to wit: Sec. 26(1). Every bill passed by the Congress shall embrace only one subject which shall be expressed in the title thereof. Petitioners allege that the inclusion of the assailed Section 49 in the subject law resulted in the latter embracing two principal subjects, namely: (1) the conversion of Mandaluyong into a highly urbanized

city; and (2) the division of the congressional district of San Juan/Mandaluyong into two separate districts. Petitioners contend that the second aforestated subject is not germane to the subject matter of R.A. No. 7675 since the said law treats of the conversion of Mandaluyong into a highly urbanized city, as expressed in the title of the law. Therefore, since Section 49 treats of a subject distinct from that stated in the title of the law, the "one subject-one bill" rule has not been complied with. Petitioners' second and third objections involve Article VI, Sections 5(1) and (4) of the Constitution, which provide, to wit: Sec. 5(1). The House of Representatives shall be composed of not more than two hundred and fifty members, unless otherwise fixed by law, who shall be elected from legislative districts apportioned among the provinces, cities, and the Metropolitan Manila area in accordance with the number of their respective inhabitants, and on the basis of a uniform and progressive ratio, and those who, as provided by law, shall be elected through a party list system of registered national, regional and sectoral parties or organizations. Sec. 5(4). Within three years following the return of every census, the Congress shall make a reapportionment of legislative districts based on the standard provided in this section. Petitioners argue that the division of San Juan and Mandaluyong into separate congressional districts under Section 49 of the assailed law has resulted in an increase in the composition of the House of Representatives beyond that provided in Article VI, Sec. 5(1) of the Constitution. Furthermore, petitioners contend that said division was not made pursuant to any census showing that the subject municipalities have attained the minimum population requirements. And finally, petitioners assert that Section 49 has the effect of preempting the right of Congress to reapportion legislative districts pursuant to Sec. 5(4) as aforecited. The contentions are devoid of merit. Anent the first issue, we agree with the observation of the Solicitor General that the statutory conversion of Mandaluyong into a highly urbanized city with a population of not less than two hundred fifty thousand indubitably ordains compliance with the "one city-one representative" proviso in the Constitution: . . . Each city with a population of at least two hundred fifty thousand, or each province, shall have at least one representative" (Article VI, Section 5(3), Constitution). Hence, it is in compliance with the aforestated constitutional mandate that the creation of a separate congressional district for the City of Mandaluyong is decreed under Article VIII, Section 49 of R.A. No. 7675. Contrary to petitioners' assertion, the creation of a separate congressional district for Mandaluyong is not a subject separate and distinct from the subject of its conversion into a highly urbanized city but is a natural and logical consequence of its conversion into a highly urbanized city. Verily, the title of R.A. No. 7675, "An Act Converting the Municipality of Mandaluyong Into a Highly Urbanized City

of Mandaluyong" necessarily includes and contemplates the subject treated under Section 49 regarding the creation of a separate congressional district for Mandaluyong. Moreover, a liberal construction of the "one title-one subject" rule has been invariably adopted by this court so as not to cripple or impede legislation. Thus, in Sumulong v. Comelec (73 Phil. 288 [1941]), we ruled that the constitutional requirement as now expressed in Article VI, Section 26(1) "should be given a practical rather than a technical construction. It should be sufficient compliance with such requirement if the title expresses the general subject and all the provisions are germane to that general subject." The liberal construction of the "one title-one subject" rule had been further elucidated in Lidasan v. Comelec (21 SCRA 496 [1967]), to wit: Of course, the Constitution does not require Congress to employ in the title of an enactment, language of such precision as to mirror, fully index or catalogue all the contents and the minute details therein. It suffices if the title should serve the purpose of the constitutional demand that it inform the legislators, the persons interested in the subject of the bill and the public, of the nature, scope and consequences of the proposed law and its operation" (emphasis supplied). Proceeding now to the other constitutional issues raised by petitioners to the effect that there is no mention in the assailed law of any census to show that Mandaluyong and San Juan had each attained the minimum requirement of 250,000 inhabitants to justify their separation into two legislative districts, the same does not suffice to strike down the validity of R.A. No. 7675. The said Act enjoys the presumption of having passed through the regular congressional processes, including due consideration by the members of Congress of the minimum requirements for the establishment of separate legislative districts. At any rate, it is not required that all laws emanating from the legislature must contain all relevant data considered by Congress in the enactment of said laws. As to the contention that the assailed law violates the present limit on the number of representatives as set forth in the Constitution, a reading of the applicable provision, Article VI, Section 5(1), as aforequoted, shows that the present limit of 250 members is not absolute. The Constitution clearly provides that the House of Representatives shall be composed of not more than 250 members, "unless otherwise provided by law." The inescapable import of the latter clause is that the present composition of Congress may be increased, if Congress itself so mandates through a legislative enactment. Therefore, the increase in congressional representation mandated by R.A. No. 7675 is not unconstitutional. Thus, in the absence of proof that Mandaluyong and San Juan do not qualify to have separate legislative districts, the assailed Section 49 of R.A. No. 7675 must be allowed to stand. As to the contention that Section 49 of R.A. No. 7675 in effect preempts the right of Congress to reapportion legislative districts, the said argument borders on the absurd since petitioners overlook the glaring fact that it was Congress itself which drafted, deliberated upon and enacted the assailed law, including Section 49 thereof. Congress cannot possibly preempt itself on a right which pertains to itself. Aside from the constitutional objections to R.A. No. 7675, petitioners present further arguments against the validity thereof.

Petitioners contend that the people of San Juan should have been made to participate in the plebiscite on R.A. No. 7675 as the same involved a change in their legislative district. The contention is bereft of merit since the principal subject involved in the plebiscite was the conversion of Mandaluyong into a highly urbanized city. The matter of separate district representation was only ancillary thereto. Thus, the inhabitants of San Juan were properly excluded from the said plebiscite as they had nothing to do with the change of status of neighboring Mandaluyong. Similarly, petitioners' additional argument that the subject law has resulted in "gerrymandering," which is the practice of creating legislative districts to favor a particular candidate or party, is not worthy of credence. As correctly observed by the Solicitor General, it should be noted that Rep. Ronaldo Zamora, the author of the assailed law, is the incumbent representative of the former San Juan/Mandaluyong district, having consistently won in both localities. By dividing San Juan/Mandaluyong, Rep. Zamora's constituency has in fact been diminished, which development could hardly be considered as favorable to him. WHEREFORE, the petition is hereby DISMISSED for lack of merit. SO ORDERED. Narvasa, C.J., Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Quiason, Puno, Vitug, Kapunan and Mendoza, JJ., concur. Feliciano, J., is on leave.

G.R. No. 72971 October 15, 1990 ABAQUIN SECURITY AND DETECTIVE AGENCY, INC., petitioner, vs. HON. DIEGO P. ATIENZA, HON. CLETO T. VILLATUYA, HON. GERONIMO Q. CUADRA, NATIONAL LABOR RELATIONS COMMISSION and ANTONIO B. JOSE, respondents. D. P. Mercado & Associates for petitioner.

FERNAN, C.J.: The instant petition for certiorari raises primarily the issue of whether or not a security agency may be required to pay retirement or termination benefits in favor of its security guard who voluntarily resigned, in the absence of an agreement, contract or management policy regarding such benefits. Petitioner security agency employed private respondent Antonio B. Jose as a security guard on August 29, 1959. Almost twenty-five (25) years later or on April 12, 1984, Jose voluntarily resigned in view of his failing health and his desire to withdraw his cash deposits with petitioner. He was then sixty-one (61) years old. After Jose had executed a certificate of discharge acknowledging full payment of his services as well as a quitclaim of all demands against petitioner, the latter, relying on the absence of any management policy or agreement between them regarding retirement or termination benefits, paid Jose only his cash deposits. Feeling aggrieved, Jose filed before the Arbitration Branch of the National Labor Relations Commission (NLRC) a complaint against

petitioner for separation pay, or in lieu thereof, gratuity benefits equal to one-half month salary for every year of service and other benefits provided for by law. Labor Arbiter Domingo V. del Rosario dismissed Jose's complaint on the following grounds: (a) an employee's enjoyment of retirement benefits or separation pay under Article 288 of the Labor Code and Sections 13 and 14 (a), Rule I, Book VI of the Rules and Regulations Implementing the Labor Code is subject to the existence of a retirement plan, individual or collective agreement or established management policy; (b) Jose cannot claim under said implementing rules benefits which are not granted by the Code, otherwise the then Ministry of Labor would be guilty of legislative usurpation; and (c) Jose was put in estoppel when he executed the certificate of discharge and when he voluntarily resigned. 1 On appeal, the NLRC in its decision of September 30, 1985, set aside the labor arbiter's decision, disposing, thus: WHEREFORE, premises considered, the appealed decision is hereby SET ASIDE and another one entered ordering respondent-appellee to pay complainant-appellant (herein private respondent Jose) his retirement or termination pay as provided for under existing laws and rules in an amount equivalent to one-half () month salary for every year of service, a fraction of at least six (6) months being considered as one whole year. Consequently, respondent-appellee (herein petitioner) is directed to show proof of immediate compliance to (sic) the mandate of this Decision after ten (10) days from receipt hereof.
SO ORDERED. 2

The NLRC construed Section 14 (a) of Rule I, Book VI of the Implementing Rules and Regulations of the Labor Code in relation to the second paragraph of Article 288 as entitling a retiring employee to termination pay of one-half () month for every year of service in the absence of any agreement or employer policy on retirement pay. It ruled that said Section 14 (a) was intended "to give full effect and application to Article 288 of the Labor Code (which) covers all retiring employees, regardless of the existence of any agreement, company policy or otherwise." 3 It added that under the principle of equity, it is only just and fair to reward retiring employees for their long years of faithful service to their employer. Moreover, the NLRC said that Jose's execution of the certificate of discharge "never implied (his) abdication" or waiver of the benefits due him under existing laws on account of the principle that labor standards are not subject to waiver or any agreement which would deprive the workingman of said benefits. Hence, the instant petition for certiorari raising the issues of whether or not a 61-year-old security guard who voluntarily resigned is entitled to retirement benefits under Article 288 of the Labor Code and whether or not Sections 13 and 14 (a), Rule I, Book VI of the Rules and Regulations Implementing the Labor Code can alter, repeal or modify said Article 288. The Court dismissed the instant petition for lack of merit on December 16, 1985. 4 Expectedly, petitioner filed a motion for reconsideration reiterating as grounds therefor the two issues it had raised in the petition and, in addition, the grounds that the aforesaid sections of the implementing rules may not be the sources of a privilege in favor of private respondent and that equity demands that it "be not unduly burdened in paying retirement benefits to a former employee." 5

Respondents having filed their comments on the motion for reconsideration, the Court reconsidered the dismissal resolution in view of the fact that this case requires the interpretation of Article 288 of the Labor Code and said Sections 13 and 14 (a) of Implementing Rule I. 6 The legal provisions involved in this petition provide as follows:
Art, 288. * Retirement. Any employee may be retired upon reaching the retirement age established in the collective bargaining agreement or other applicable employment contract.

In case of retirement, the employee shall be entitled to receive such retirement benefits as he may have earned under existing laws and any collective bargaining or other agreement. (Labor Code) Sec. 13. Retirement. In the absence of any collective bargaining agreement or other applicable agreement concerning terms and conditions of employment which provides for retirement at an older age, an employee may be retired upon reaching the age of sixty (60) years.
Sec. 14. Retirement benefits. An employee who is retired pursuant to a bona-fide retirement plan or in accordance with the applicable individual or collective agreement or established employer policy shall be entitled to all the retirement benefits provided therein or to termination pay equivalent at least to one-half month salary for every year of service, whichever is higher, a fraction of at least six (6) months being considered as one whole year. 7

Construing these provisions in relation to the same issue presented in this petition, this Court in the case of Llora Motors, Inc., and/ or Constantino Carlota, Jr. vs. Hon. Franklin Drilon, et al ., 8 clarified that Article 288 (now 287) "does not itself purport to impose any obligation upon employers to set up a retirement scheme for their employees over and above that already established under existing laws. In other words, Article 287 recognizes that existing laws already provide for a scheme by which retirement benefits may be earned or accrue in favor of employees, as part of a broader social security system that provides not only for retirement benefits but also death and funeral benefits, permanent disability benefits, sickness benefits and maternity leave benefits. 9 Llora went further to elucidate on the import of Sections 13 and 14 of Implementing Rule I to end the confusion between the concepts "retirement benefits" and "termination pay" inadvertently engendered by the phraseology of Section 14, which deals with both. Thus: ... It is important to keep the two (2) concepts of "termination pay" and "retirement benefits" separate and distinct from each other. Termination pay or separation pay is required to be paid by an employer in particular situations Identified by the Labor Code itself or by Implementing Rule I. Termination pay where properly due and payable under some applicable provision of the Labor Code or under Section 4 (b) of Implementing Rule I, must be paid whether or not an additional retirement plan has been set up under an agreement with the employer or under an "established employer policy."
What needs to be stressed, however, is that Section 14 of Implementing Rule I, like Article 287 of the Labor Code, does not purport to require termination pay to be paid to an employee who may want to retire but for whom no additional retirement plan had been set up by prior agreement with the employer. ... What Section 14 of Implementing Rule I

may be seen to be saying is that where termination pay is otherwise payable to an employee under an applicable provision of the Labor Code, and an additional or consensual retirement plan exists, then payments under such retirement plan may be credited against the termination pay that is due, subject, however to certain conditions. ... 10

Based on the foregoing, there being no individual or collective agreement between the parties or established employer's policy regarding retirement benefits, petitioner's resistance to private respondent's claim therefor is legally defensible. However, it must be noted that the complaint filed by private respondent prayed primarily for termination benefits and only in the alternative for gratuity benefits. In fact, the dispositive portion of the decision. under review ordered petitioner to pay private respondent "retirement or termination pay". In so ordering, the NLRC reasoned:
... The implementing rule particularly applicable to paragraph No. 2 Art. 288 is Section 14 (a) of Rule I, Book VI, of the Implementing Rules and Regulations of the Labor Code. This rule provides retirement benefits to employees who have reached the retirement age, in an amount equivalent either to a bona-fide retirement plan, a CBA or individual agreement, an established employer policy, or in the absence of the preceeding three practices, a termination pay of at least one-half (1/2) month salary for every year of service, a fraction of at least six (6) months being considered as one whole year. ... 11

Taken in the light of our pronouncements in Llora, the incorrectness of the interpretation given by the NLRC to Article 288 in relation to Section 14 (a) of Implementing Rule I is at once apparent. "While it is true that the contemporaneous construction placed upon a statute by executive officers whose duty is to enforce it should be given great weight by the courts, still if such construction is so erroneous, as in the instant case, the same must be declared as null and void. It is the role of the Judiciary to refine and, when necessary, correct constitutional (and/or statutory) interpretation, in the context of the interactions of the three branches of the government, almost always in situations where some agency of the State has engaged in action that stems ultimately from some legitimate area of governmental power (The Supreme Court in Modern Role, C. B. Swisher, 1958, p. 36)." 12 We hasten to add, lest a misimpression is created, that we are here setting aside as null and void merely theinterpretation given in the instant case by the NLRC to Section 14(a) of Implementing Rule I in relation to Article 288 of the Labor Code, and not Section 14(a) itself which had been given by this Court in Llora supra a construction that is in harmony and consistent with Article 288 of the Labor Code. Be that as it may, we are not prepared to altogether set aside the award of termination pay, considering that there exists another legal basis therefor. As keenly observed by the Solicitor General: It may not be improper to state that respondent Jose should be paid termination pay for reasons analogous to those contemplated under Article 285 of the Labor Code, which provides: Art. 285. Disease as ground for termination. An employer may terminate the services of an employee who has been found to be suffering from any disease and whose continued employment is prohibited by law or is prejudicial to his health as well as to the health of his co-employees: Provided, That he is paid separation pay equivalent to at least one (1) month salary or to one half () month

salary for every year of service, whichever is greater, a fraction of at least six (6) months being considered as one (1) whole year.
It is true that respondent Jose voluntarily resigned but he resigned because, among others, he suffered from ill health. When petitioner accepted his resignation, it terminated his services partly for that reason. 13

Under Article 245 of the Labor Code, "(s)ecurity guards and other personnel employed for the protection and security of the person, properties and premises of the employer shall not be eligible for membership in any labor organization." As such, they are a special class of employees in that they are deprived of the right to ventilate demands collectively. They are subject to terms and conditions of employment circumscribed by employment contracts imposed on them by their employer. While they may make particular individual demands in said contracts, more often than not, they fail to do so at the time of hiring. Hence, their only refuge is the liberality of the law. Private respondent, who was in the employ of petitioner for almost a quarter of a century and whose reason for terminating his employment was his failing health, deserves the full measure of the law's benevolence. WHEREFORE, the petition is DISMISSED. The monetary award in favor of private respondent Antonio B. Jose is understood to be in the concept of termination pay, rather than retirement benefits. This decision is immediately executory. SO ORDERED. Gutierrez, Jr., Bidin and Cortes, JJ., concur. Feliciano, J., is on leave. G.R. No. 191084 March 25, 2010

JOSELITO R. MENDOZA, Petitioner, vs. COMMISSION ON ELECTIONS AND ROBERTO M. PAGDANGANAN, Respondents. DECISION PEREZ, J.: When the language of the law is clear and explicit, there is no room for interpretation, only application. And if statutory construction be necessary, the statute should be interpreted to assure its being in consonance with, rather than repugnant to, any constitutional command or prescription. 1 It is upon these basic principles that the petition must be granted. The factual and procedural antecedents are not in dispute. Petitioner Joselito R. Mendoza was proclaimed the winner of the 2007 gubernatorial election for the province of Bulacan, besting respondent Roberto M. Pagdanganan by a margin of 15,732 votes. On 1 June 2007, respondent filed the Election Protest which, anchored on the massive electoral fraud allegedly perpetrated by petitioner, was raffled to the Second Division of the Commission on

Elections (COMELEC) as EPC No. 2007-44. With petitioners filing of his Answer with CounterProtest on 18 June 2007, the COMELEC proceeded to conduct the preliminary conference and to order a revision of the ballots from the contested precincts indicated in said pleadings. Upon the evidence adduced and the memoranda subsequently filed by the parties, the COMELEC Second Division went on to render the 1 December 2009 Resolution, which annulled and set aside petitioners proclamation as governor of Bulacan and proclaimed respondent duly elected to said position by a winning margin of 4,321 votes. Coupled with a directive to the Department of Interior and Local Government to implement the same, the resolution ordered petitioner to immediately vacate said office, to cease and desist from discharging the functions pertaining thereto and to cause a peaceful turn-over thereof to respondent. Dissatisfied, petitioner filed a Motion for Reconsideration of the foregoing resolution with the COMELEC En Banc. Against respondents Motion for Execution of Judgment Pending Motion for Reconsideration, petitioner also filed an Opposition to the Motion for Execution before the COMELEC Second Division. On 8 February 2010, however, the COMELEC En Banc issued a Resolution, effectively disposing of the foregoing motions/incidents in this wise: WHEREFORE, in view of the foregoing, the Commission En Banc DENIES the Motion for Reconsideration for lack of merit. The Resolution of the Commission (Second Division) promulgated on December 1, 2009 ANNULLING the proclamation of JOSELITO R. MENDOZA as the duly elected Governor of Bulacan and DECLARING ROBERTO M. PAGDANGANAN as duly elected to said Office is AFFIRMED with modification. Considering the proximity of the end of the term of office involved, this Resolution is declared immediately executory. ACCORDINGLY, the Commission En Banc hereby ISSUES a WRIT OF EXECUTION directing the Provincial Election Supervisor of Bulacan, in coordination with the DILG Provincial Operations Officer to implement the Resolution of the Commission (Second Division) dated December 1, 2009 and this Resolution of the Commission En Banc by ordering JOSELITO R. MENDOZA to CEASE and DESIST from performing the functions of Governor of the Province of Bulacan and to VACATE said office in favor of ROBERTO M. PAGDANGANAN. Let a copy of this Resolution be furnished the Secretary of the Department of Interior and Local Government, the Provincial Election Supervisor of Bulacan, and the DILG Provincial Operations Officer of the Province of Bulacan. (Underscoring supplied) On 11 February 2010, petitioner filed before the COMELEC an Urgent Motion to Recall the Resolution Promulgated on February 8, 2010 on the following grounds: (a) lack of concurrence of the majority of the members of the Commission pursuant to Section 5, Rule 3 of the COMELEC Rules of Procedure; (b) lack of re-hearing pursuant to Section 6, Rule 18 of the Rules; and (c) lack of notice for the promulgation of the resolution pursuant to Section 5, Rule 18 of said Rules. Invoking Section 13, Rule 18 of the same Rules, petitioner additionally argued that the resolution pertained to an ordinary action and, as such, can only become final and executory after 30 days from its promulgation. On 12 February 2010, petitioner filed the instant Petition for Certiorari with an Urgent Prayer for the Issuance of a Temporary Restraining Order and/or a Status Quo Order and Writ of Preliminary Injunction. Directed against the 8 February 2010 Resolution of the COMELEC En Banc, the petition is noticeably anchored on the same grounds raised in petitioners urgent motion to recall the same

resolution before the COMELEC. In addition, the petitioner disputes the appreciation and result of the revision of the contested ballots. In the meantime, it appears that the COMELEC En Banc issued a 10 February 2010 Order, scheduling the case for re-hearing on 15 February 2010, on the ground that "there was no majority vote of the members obtained in the Resolution of the Commission En Banc promulgated on February 8, 2010." At said scheduled re-hearing, it further appears that the parties agreed to submit the matter for resolution by the COMELEC En Banc upon submission of their respective memoranda, without further argument. As it turned out, the deliberations which ensued again failed to muster the required majority vote since, with three (3) Commissioners not taking part in the voting, and only one dissent therefrom, the assailed 1 December 2009 Resolution of the COMELEC Second Division only garnered three concurrences. In their respective Comments thereto, both respondent and the Office of the Solicitor General argue that, in addition to its premature filing, the petition at bench violated the rule against forum shopping. Claiming that he received the 10 February 2010 Order of the COMELEC En Banc late in the morning of 12 February 2010 or when the filing of the petition was already underway, petitioner argued that: (a) he apprised the Court of the pendency of his Urgent Motion to Recall the Resolution Promulgated on 8 February 2010; and, (b) that the writ of execution ensconced in said resolution compelled him to resort to the petition for certiorari before us. On 4 March 2010, the COMELEC En Banc issued an Order for the issuance of a Writ of Execution directing the implementation of the 1 December 2009 Resolution of the COMELEC Second Division. While the COMELEC Electoral Contests Adjudication Department (ECAD) issued the corresponding Writ of Execution on 5 March 2010, the record shows that COMELEC En Banc issued an Order on the same date, directing the ECAD to deliver said 4 March 2010 Order and 5 March 2010 Writ of Execution by personal service to the parties. Aggrieved, petitioner filed the following motions with the COMELEC En Banc on 5 March 2010, viz.: (a) Urgent Motion to Declare Null and Void and Recall Latest En Banc Resolution Dated March 4, 2010; and, (b) Urgent Motion to Set Aside 4 March 2010 En Banc Resolution Granting Protestants Motion for Execution Pending Motion for Reconsideration. On 8 March 2010, petitioner filed before us a Supplement to the Petition with a Most Urgent Reiterating Motion for the Issuance of a Temporary Restraining Order or a Status Quo Order. Contending that respondents protest should have been dismissed when no majority vote was obtained after the re-hearing in the case, petitioner argues that: (a) the 4 March 2010 Order and 5 March 2010 Writ of Execution are null and void; (b) no valid decision can be rendered by the COMELEC En Banc without the appreciation of the original ballots; (c) the COMELEC ignored the Courts ruling in the recent case of Corral v. Commission on Elections; 2 and (d) the foregoing circumstances are indicative of the irregularities which attended the adjudication of the case before the Division and En Banc levels of the COMELEC. Despite receipt of respondents Most Respectful Urgent Manifestation which once again called attention to petitioners supposed forum shopping, the Court issued a Resolution dated 9 March 2010 granting the Status Quo Ante Order sought in the petition. With respondents filing of a Manifestation and Comment to said supplemental pleading on 10 March 2010, petitioner filed a Manifestation with Motion to Appreciate Ballots Invalidated as Written by One Person and Marked Ballot on 12 March 2010. The submissions, as measured by the election rules, dictate that we grant the petition, set aside and nullify the assailed resolutions and orders, and order the dismissal of respondents election protest. The Preliminaries

More than the justifications petitioner proffers for the filing of the petition at bench, the public interest involved in the case militates against the dismissal of the pleading on technical grounds like forum shopping. On the other hand, to rule that petitioner should have filed a new petition to challenge the 4 March 2010 Order of the COMELEC En Banc is to disregard the liberality traditionally accorded amended and supplemental pleadings and the very purpose for which supplemental pleadings are allowed under Section 6, Rule 10 of the 1997 Rules of Civil Procedure. 3 More importantly, such a course of action would clearly be violative of the injunction against multiplicity of suits enunciated in a long catena of decisions handed down by this Court. The Main Matter Acting on petitioners motion for reconsideration of the 1 December 2009 Resolution issued by the COMELEC Second Division, the COMELEC En Banc, as stated, initially issued the Resolution dated 8 February 2010, denying the motion for lack of merit and declaring the same resolution immediately executory. However, even before petitioners filing of his Urgent Motion to Recall the Resolution Promulgated on 8 February 2010 and the instant Petition for Certiorari with an Urgent Prayer for the Issuance of a Temporary Restraining Order and/or a Status Quo Order and Writ of Preliminary Injunction, the record shows that the COMELEC En Banc issued the 10 February 2010 Resolution, ordering the re-hearing of the case on the ground that "there was no majority vote of the members obtained in the Resolution of the Commission En Banc promulgated on February 8, 2010." Having conceded one of the grounds subsequently raised in petitioners Urgent Motion to Recall the Resolution Promulgated on February 8, 2010, the COMELEC En Banc significantly failed to obtain the votes required under Section 5(a), Rule 3 of its own Rules of Procedure 4 for a second time. The failure of the COMELEC En Banc to muster the required majority vote even after the 15 February 2010 re-hearing should have caused the dismissal of respondents Election Protest. Promulgated on 15 February 1993 pursuant to Section 6, Article IX-A and Section 3, Article IX-C of the Constitution, the COMELEC Rules of Procedure is clear on this matter. Without any trace of ambiguity, Section 6, Rule 18 of said Rule categorically provides as follows: Sec. 6. Procedure if Opinion is Equally Divided. When the Commission en banc is equally divided in opinion, or the necessary majority cannot be had, the case shall be reheard, and if on rehearing no decision is reached, the action or proceeding shall be dismissed if originally commenced in the Commission; in appealed cases, the judgment or order appealed from shall stand affirmed; and in all incidental matters, the petition or motion shall be denied. The propriety of applying the foregoing provision according to its literal tenor cannot be gainsaid. As one pertaining to the election of the provincial governor of Bulacan, respondents Election Protest was originally commenced in the COMELEC, pursuant to its exclusive original jurisdiction over the case. Although initially raffled to the COMELEC Second Division, the elevation of said election protest on motion for reconsideration before the Commission En Banc cannot, by any stretch of the imagination, be considered an appeal. Tersely put, there is no appeal within the COMELEC itself. As aptly observed in the lone dissent penned by COMELEC Commissioner Rene V. Sarmiento, respondents Election Protest was filed with the Commission "at the first instance" and should be, accordingly, considered an action or proceeding "originally commenced in the Commission." The dissent reads Section 6 of COMELEC Rule 18 to mean exactly the opposite of what it expressly states. Thus was made the conclusion to the effect that since no decision was reached by the COMELEC En Banc, then the decision of the Second Division should stand, which is squarely in the face of the Rule that when the Commission En Banc is equally divided in opinion, or the necessary majority cannot be had, the case shall be re-heard, and if on re-hearing, no decision is reached, the

action or proceeding shall be dismissed if originally commenced in the Commission. The reliance is on Section 3, Article IX(C) of the Constitution which provides: Section 3. The Commission on Elections may sit En Banc or in two divisions, and shall promulgate its rules of procedure in order to expedite disposition of election cases, including pre-proclamation controversies. All such election cases shall be heard and decided in division, provided that motions for reconsideration of decisions shall be decided by the Commission En Banc. The dissent reasons that it would be absurd that for a lack of the necessary majority in the motion for reconsideration before the COMELEC En Banc, the original protest action should be dismissed as this would render nugatory the constitutional mandate to authorize and empower a division of the COMELEC to decide election cases. We cannot, in this case, get out of the square cover of Section 6, Rule 18 of the COMELEC Rules. The provision is not violative of the Constitution. The Rule, in fact, was promulgated obviously pursuant to the Constitutional mandate in the first sentence of Section 3 of Article IX(C). Clearly too, the Rule was issued "in order to expedite disposition of election cases" such that even the absence of a majority in a Commission En Banc opinion on a case under reconsideration does not result in a non-decision. Either the judgment or order appealed from "shall stand affirmed" or the action originally commenced in the Commission "shall be dismissed." It is easily evident in the second sentence of Section 3 of Article IX(C) that all election cases before the COMELEC are passed upon in one integrated procedure that consists of a hearing and a decision "in division" and when necessitated by a motion for reconsideration, a decision "by the Commission En Banc." What is included in the phrase "all such election cases" may be seen in Section 2(2) of Article IX(C) of the Constitution which states: Section 2. The Commission on Elections shall exercise the following powers and functions: xxxx (2) Exercise exclusive original jurisdiction over all contests relating to the elections, returns, and qualifications of all elective regional, provincial, and city officials, and appellate jurisdiction over all contests involving elective municipal of officials decided by trial courts of general jurisdiction, or involving elective barangay officials decided by trial courts of limited jurisdiction. Section 2(2) read in relation to Section 3 shows that however the jurisdiction of the COMELEC is involved, either in the exercise of "exclusive original jurisdiction" or an "appellate jurisdiction," the COMELEC will act on the case in one whole and single process: to repeat, in division, and if impelled by a motion for reconsideration, en banc. There is a difference in the result of the exercise of jurisdiction by the COMELEC over election contests. The difference inheres in the kind of jurisdiction invoked, which in turn, is determined by the case brought before the COMELEC. When a decision of a trial court is brought before the COMELEC for it to exercise appellate jurisdiction, the division decides the appeal but, if there is a motion for reconsideration, the appeal proceeds to the banc where a majority is needed for a decision. If the process ends without the required majority at the banc, the appealed decision stands

affirmed. Upon the other hand, and this is what happened in the instant case, if what is brought before the COMELEC is an original protest invoking the original jurisdiction of the Commission, the protest, as one whole process, is first decided by the division, which process is continued in the banc if there is a motion for reconsideration of the division ruling. If no majority decision is reached in the banc, the protest, which is an original action, shall be dismissed. There is no first instance decision that can be deemed affirmed. It is easy to understand the reason for the difference in the result of the two protests, one as original action and the other as an appeal, if and when the protest process reaches the COMELEC En Banc. In a protest originally brought before the COMELEC, no completed process comes to the banc. It is the banc which will complete the process. If, at that completion, no conclusive result in the form of a majority vote is reached, the COMELEC has no other choice except to dismiss the protest. In a protest placed before the Commission as an appeal, there has been a completed proceeding that has resulted in a decision. So that when the COMELEC, as an appellate body, and after the appellate process is completed, reaches an inconclusive result, the appeal is in effect dismissed and resultingly, the decision appealed from is affirmed.
1avvphi1

To repeat, Rule 18, Section 6 of the COMELEC Rules of Procedure follows, is in conformity with, and is in implementation of Section 3 of Article IX(C) of the Constitution. Indeed, the grave abuse of discretion of the COMELEC is patent in the fact that despite the existence in its books of the clearly worded Section 6 of Rule 18, which incidentally has been acknowledged by this Court in the recent case of Marcoleta v. COMELEC, 5 it completely ignored and disregarded its very own decree and proceeded with the questioned Resolution of 8 February 2010 and Order of 4 March 2010, in all, annulling the proclamation of petitioner Joselito R. Mendoza as the duly elected governor of Bulacan, declaring respondent Roberto M. Pagdanganan as the duly elected governor, and ordering petitioner Joselito R. Mendoza to cease and desist from performing the functions of the Governor of Bulacan and to vacate said office in favor of respondent Roberto M. Pagdanganan.
1avvphi1

The grave abuse of discretion of the COMELEC is underscored by the fact that the protest that petitioner Pagdanganan filed on 1 June 2007 overstayed with the COMELEC until the present election year when the end of the term of the contested office is at hand and there was hardly enough time for the re-hearing that was conducted only on 15 February 2010. As the hearing time at the division had run out, and the re-hearing time at the banc was fast running out, the unwanted result came about: incomplete appreciation of ballots; invalidation of ballots on general and unspecific grounds; unrebutted presumption of validity of ballots. WHEREFORE, the petition is GRANTED. The questioned Resolution of the COMELEC promulgated on 8 February 2010 in EPC No. 2007-44 entitled "Roberto M. Pagdanganan v. Joselito R. Mendoza," the Order issued on 4 March 2010, and the consequent Writ of Execution dated 5 March 2010 are NULLIFIED and SET ASIDE. The election protest of respondent Roberto M. Pagdanganan is hereby DISMISSED. SO ORDERED. JOSE PORTUGAL PEREZ Associate Justice WE CONCUR:

REYNATO S. PUNO* Chief Justice ANTONIO T. CARPIO** Acting Chief Justice CONCHITA CARPIO MORALES Associate Justice ANTONIO EDUARDO B. NACHURA Associate Justice ARTURO D. BRION Associate Justice LUCAS P. BERSAMIN Associate Justice ROBERTO A. ABAD Associate Justice RENATO C. CORONA Associate Justice PRESBITERO J. VELASCO, JR. Associate Justice TERESITA J. LEONARDO-DECASTRO Associate Justice DIOSDADO M. PERALTA Associate Justice MARIANO C. DEL CASTILLO Associate Justice MARTIN S. VILLARAMA, JR. Associate Justice

JOSE CATRAL MENDOZA Associate Justice CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court. ANTONIO T. CARPIO Acting Chief Justice

Footnotes
*

On official leave.

Per Special Order No. 826, Senior Associate Justice Antonio T. Carpio is designated as Acting Chief Justice from March 17-30, 2010.
** 1

Mutuc v. COMELEC, 146 Phil. 798, 805 (1970), citing cases. G.R. No. 190156, 12 February 2010.

Sec. 6. Supplemental pleadings. Upon motion of a party, the court may, upon reasonable notice and upon such terms as are just, permit him to serve a supplemental pleading setting
3

forth transactions, occurrences or events which have happened since the date of the pleading sought to be supplemented. The adverse party may plead thereto within ten (10) days from notice of the order admitting the supplemental pleading. Sec. 5. Quorum; Votes Required. (a) When sitting en banc, four (4) Members of the Commission shall constitute a quorum for the purpose of transacting business. The concurrence of a majority of the Members of the Commission shall be necessary for the pronouncement of a decision, resolution, order or ruling.
4 5

G.R. No. 181377, 24 April 2009.

The Lawphil Project - Arellano Law Foundation

SEPARATE CONCURRING OPINION CARPIO, Acting C.J.: This case involves the election protest filed with the Commission on Elections (COMELEC) against Joselito R. Mendoza (Mendoza), who was proclaimed elected Governor of Bulacan in the 14 May 2007 elections. Mendoza garnered 364,566 votes while private respondent Roberto M. Pagdanganan (Pagdanganan) got 348,834 votes, giving Mendoza a winning margin of 15,732 votes. After the appreciation of the contested ballots, the COMELEC Second Division deducted a total of 20,236 votes from Mendoza and 616 votes from Pagdanganan. As regards the claimed ballots, Mendoza was awarded 587 ballots compared to Pagdanganans 586 ballots. Thus, the result of the revision proceedings showed that Pagdanganan obtained 342,295 votes, which is more than Mendozas 337,974 votes. In its Resolution dated 1 December 2009 (Division Resolution), the COMELEC Second Division annulled the proclamation of Mendoza and proclaimed Pagdanganan as the duly elected Governor of Bulacan with a winning margin of 4,321 votes. The COMELEC En Banc affirmed the Division Resolution on 8 February 2010. On 4 March 2010, the COMELEC En Banc issued an Order denying Mendozas Motion for Reconsideration and granting Pagdanganans Motion for Execution of the Division Resolution. Hence, this petition for certiorari. I vote to grant the petition solely on the ground of the incomplete appreciation of the contested ballots, and not on the ground that the decision of the COMELEC Second Division was abandoned, resulting in the dismissal of the election protest, when the COMELEC En Banc failed to reach a majority decision. The fundamental reason for granting the petition is the incomplete appreciation of the contested ballots. Section 211 of Batas Pambansa Blg. 881 (BP 881), otherwise known as the Omnibus Election Code of the Philippines, states that "[i]n the reading and appreciation of ballots, every ballot shall be presumed to be valid unless there is a clear and good reason to justify its rejection." It is therefore imperative that extreme caution be exercised before any ballot is invalidated, and in the appreciation of ballots, doubts should be resolved in favor of their validity. 1 For after all, the primary objective in the appreciation of ballots is to discover and give effect to the intention of the voter2 and, thus, preserve the sanctity of the electoral process.

In this case, the COMELEC invalidated the contested ballots in favor of Mendoza mainly on the grounds of written by one person (WBO) and marked ballots (MB). However, as pointed out by Commissioner Sarmiento, only the general objections were mentioned in the ballots invalidated on the ground of WBO, without clearly and distinctly indicating the specifics or details of the WBO objections. Such generalization falls short of the mandate provided under Section 1, Rule 18 of the COMELEC Rules of Procedure which states that "[e]very decision shall express therein clearly and distinctly the facts and the law on which it is based." Section 2(d) of Rule 14,3 which should apply by analogy to this case, provides: (d) On Pair or Group of Ballots Written by One or Individual Ballots Written By Two When ballots are invalidated on the ground of written by one person, the court must clearly and distinctly specify why the pair or group of ballots has been written by only one person. The specific strokes, figures or letters indicating that the ballots have been written by one person must be specified. A simple ruling that a pair or group of ballots has been written by one person would not suffice. The same is true when ballots are excluded on the ground of having been written by two persons. The court must likewise take into consideration the entries of the Minutes of Voting and Counting relative to illiterate or disabled voters, if any, who cast their votes through assistors, in determing the validity of the ballots found to be written by one person, whether the ballots are in pairs or in groups;" (Emphasis supplied) The ruling of the COMELEC fails to specify the "strokes, figures or letters indicating that the ballots were written by one person." The COMELEC merely made this omnibus ruling: "These ballots are void for being written by one person. The similarity in the handwriting style/strokes is more real than apparent. The dents and slants used in writing the names of the candidates prove that these pairs of ballots were written by one person." Such a ruling is clearly insufficient. Furthermore, the ballots were invalidated without consulting the Minutes of Voting to determine the existence of incapacitated and illiterate voters in the voting precincts . The presence of illiterate and incapacitated voters would likely account for some ballots to appear as written by one person due to assisted voting, which is authorized under Section 196 of BP 881, thus: SEC. 196. Preparation of ballots for illiterate and disabled persons. A voter who is illiterate or physically unable to prepare the ballot by himself may be assisted in the preparation of his ballot by a relative, by affinity or consanguinity within the fourth civil degree or if he has none, by any person of his confidence who belong to the same household or any member of the board of election inspectors, except the two party member: Provided, That no voter shall be allowed to vote as illiterate or physically disabled unless it is so indicated in his registration record: provided, further, That in no case shall an assistor assist more than three times except the non-party member of the board of election inspectors. The person thus chosen shall prepare the ballot for the illiterate or disabled voter inside the voting booth. The person assisting shall bind himself in a formal document under oath to fill out the ballot strictly in accordance with the instructions of the voter and not to reveal the contents of the ballot prepared by him. Violation of this provision shall constitute an election offense. In Delos Reyes v. Commission on Elections,4 the Court ruled that in the evaluation of ballots contested on the ground of WBO, the COMELEC must first verify from the Minutes of Voting or the Computerized Voters List for the presence of assisted voters in the contested precincts and take this fact into account; otherwise, the appreciation of ballots is incomplete. The Court held: Indeed, even if it is patent on the face of the ballots that these were written by only one person, that fact alone cannot invalidate said ballots for it may very well be that, under the system of assisted

voting, the latter was duly authorized to act as an assistor and prepare all said ballots. To hinder disenfranchisement of assisted voters, it is imperative that, in the evaluation of ballots contested on the ground of having been prepared by one person, the COMELEC first verify from the Minutes of Voting or the Computerized Voters List for the presence of assisted voters in the contested precincts and take this fact into account when it evaluates ballots bearing similar handwritings. Omission of this verification process will render its reading and appreciation of ballots incomplete. In the present case, COMELECS appreciation of the 44 contested ballots was deficient for it referred exclusively to said ballots without consulting the Minutes of Voting or the Computerized Voters List to verify the presence of assisted in the contested precincts. Thus, COMELEC acted with grave abuse of discretion in overturning the presumption of validity of the 44 ballots and declaring them invalid based on an incomplete appreciation of said ballots. 5 Likewise, in De Guzman v. Commission on Elections,6 the Court held: As regards the 7 ballots cast in favor of De Guzman which were rejected as written-by-one in Precinct 27A Mabini, the COMELEC should have considered the data reflected in the Minutes of Voting Precinct 27A Mabini. It shows the existence of 24 illiterate or physically disabled voters which necessitated voting by assistors pursuant to Section 196 of B.P. Blg. 881 which does not allow an assistor to assist more that three times except the non-party members of the board of election inspectors. There is no showing that the 7 rejected ballots is the same as that appearing in the Minutes of Voting. All of the 7 assailed ballots were cast in favor of De Guzman. Consequently, four ballots should be appreciated in his favor it being reasonably presumed that the identically written ballots were prepared by the assistor, not only for three illiterate or physically disabled voters but also for himself. Hence, added to the 38 votes, De Guzman won the election by 42 votes. 7 In this case, not just seven (7) or forty-four (44) ballots were invalidated, but thousands8 of ballots were invalidated on the ground of WBO without taking into account the existence of illiterate and incapacitated voters in the affected voting precincts as may be shown in the Minutes of Voting or the Computerized Voters List. Surely, such patent omission is so grave as would put into doubt the reliability of the findings and the conclusion based thereon by the COMELEC. The COMELEC likewise did not specifically indicate the reasons for the invalidation of the contested ballots on the ground of marked ballots (MB). Most of the rulings in the Division Resolution in invalidating on the ground of MB merely states that "distinctive markings on each ballot which serves no other purpose but to identify the ballot and or the voter himself." Such general statement, which does not indicate the distinctive markings found on the ballots, is not sufficient considering that there are marks that cannot be considered as signs to identify a ballot which would warrant its invalidation. Thus, pertinent provisions of Section 211 of BP 881 state: SEC. 211. Rules for the appreciation of ballots. In the reading and appreciation of ballots, every ballot shall be presumed to be valid unless there is clear and good reason to justify its rejection. The board of election inspectors shall observe the following rules, bearing in mind that the object of the election is to obtain the expression of the voters will: xxxx 21. Circles, crosses or lines put on the spaces on which the voter has not voted shall be considered as signs to indicate his desistance from voting and shall not invalidate the ballot.

22. Unless it should clearly appear that they have been deliberately put by the voter to serve as identification marks, commas, dots, lines, or hyphens between the first name and surname of a candidate or in other parts of the ballot, traces of the letter "T", "J", and other similar ones, the first letters or syllables of names which the voter does not continue, the use of two or more kinds of writing and unintentional or accidental flourishes, strokes, or strains, shall not invalidate the ballot.(Emphasis supplied) Indeed, no ballot should be discarded as marked ballot unless clear and sufficient reasons justify that action and any doubt must be resolved in favor of the validity of the ballot. As held by the Court in Farin v. Gonzales:9 We must re-affirm the rule that no ballot shall be discarded as marked unless its character as such is unmistakable. Distinction should be made between marks that were accidentally, carelessly or innocently made, and those designedly placed thereon by the voter with a view to possible identification of the ballot, which, therefore, invalidates it. In the absence of any circumstance showing that the intention of the voter to mark the ballot is unmistakable, or of any evidence aliunde to show that the words were deliberately written to identify the ballot, the ballot should not be discarded.10 (Emphasis supplied) Thus, in order for a ballot to be considered marked, it must clearly appear that the marks or words found on the ballot were deliberately placed thereon to serve as identification marks which therefore invalidate it.11 However, I disagree with the ponencias ruling that the decision of the COMELEC Second Division was abandoned, resulting in the dismissal of the election protest, when the COMELEC En Banc failed to reach a majority decision. The COMELEC Second Division had jurisdiction to decide this election contest under Section 3, Article IX-C of the Constitution. 12 The failure of the COMELEC En Banc to reach a majority decision on the motion for reconsideration operated to affirm the decision of the COMELEC Second Division. Accordingly, I vote to GRANT the petition on the sole ground that the COMELEC En Banc committed grave abuse of discretion when the En Banc, just like the COMELEC Second Division, failed to make a complete appreciation of the contested ballots. ANTONIO T. CARPIO Acting Chief Justice

Footnotes Dojillo v. Commission on Elections, G.R. No. 166542, 25 July 2006, 496 SCRA 482; Silverio v. Clamor, 125 Phil. 917 (1967).
1

Velasco v. Commission on Elections, G.R. No. 166931, 22 February 2007, 516 SCRA 447; De Guzman v. Commission on Elections, G.R. No. 159713, 31 March 2004, 426 SCRA 698; Torres v. House of Representatives Electoral Tribunal, 404 Phil. 125 (2001).
2

Rules of Procedure in Election Contests Before the Courts Involving Municipal and Barangay Officials.
3

G.R. No. 170070, 28 February 2007, 517 SCRA 137. Id. at 150-151. G.R. No. 159713, 31 March 2004, 426 SCRA 698. Id. at 711-712.

In his petition, Mendoza alleged that 9,160 ballots in his favor were invalidated as written by one person.
8 9

152 Phil. 598 (1973). Id. at 603-604.

10

Cordia v. Monforte, G.R. No. 174620, 4 March 2009, 580 SCRA 588; Cundangan v. Commission on Elections, G.R. No. 174392, 28 August 2007, 531 SCRA 542; Perman v. Commission on Elections, G.R. No. 174010, 8 February 2007, 515 SCRA 219.
11 12

Section 3 of Article IX-C of the Constitution reads:

The Commission on Elections may sit en banc or in two divisions, and shall promulgate its rules of procedure in order to expedite disposition of election cases, including preproclamation controversies. All such election cases shall be heard and decided in division, provided that motions for reconsideration of decisions shall be decided by the Commission en banc. (Emphasis supplied)

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SEPARATE OPINION CARPIO MORALES, J.: I proffer my opinion on four issues indicated below as sub-headings in interrogative form. The ponencia of Justice Jose Perez glosses over the first and second questions, into which I opt to delve and to which I answer in the negative. I register my dissent on the third issue. As to the fourth issue, I concur in the finding that the Commission on Elections (Comelec) abdicated its positive duty. Is petitioner guilty of forum shopping? Forum shopping is defined in Santos v. Comelec 1 as "an act of a party, against whom an adverse judgment or order has been rendered in one forum, of seeking and possibly securing a favorable opinion in another forum, other than by appeal or special civil action for certiorari[; and] may also be the institution of two or more actions or proceedings grounded on the same cause on the supposition that one or the other court would make a favorable disposition."2 Petitioner did not forum-shop.

A circumstance of forum-shopping presupposes a simultaneous or successive availment of two viable remedies, which could result in two conflicting opinions. Petitioners (1) Urgent Motion to Recall the Resolution promulgated on February 8, 2010 before the Comelec en banc (filed alongside the present petition), and (2) Urgent Motion to Declare Null & Void and Recall Latest En Banc Resolution Dated March 4, 2010 and Urgent Motion to Set Aside March 4, 2010 En Banc Resolution Granting Motion for Execution Pending Motion for Reconsideration before the Comelec en banc (filed alongside a Supplement to the present petition) are prohibited pleadings, for they are in the nature of a "motion for reconsideration of an en banc ruling, resolution, order or decision"3 which is one of the pleadings not allowed by the Comelec Rules of Procedure. As prohibited pleadings, they do not deserve the attention of the Comelec as they face the certainty of outright dismissal and the vulnerability of being expunged. In fact, a prohibited pleading cannot be given any legal effectprecisely because it is being prohibited. 4 The Comelec cannot grant or entertain prohibited pleadings regardless of their merit. The evils of coming up with a conflicting opinion and congesting the dockets are thus absent. The Comelec cannot be considered another forum from which to shop since it is no longer offering any legal remedy or recourse to the parties. Petitioner no longer waited for the resolution of the motions before filing the present petition, after perhaps realizing the futility of the prohibited pleadings that, moreover, do not toll the running of the reglementary period.5Petitioner may not thus be faulted for beating the deadline and resorting to the only remedy available provided under Rule 64 of the Rules of Court. While petitioner did not faithfully comply with the rule on prohibited pleadings, the consequences of which he alone, by all means, should bear, his actuations cannot be likened to forum-shopping. In line with the foregoing, I answer the next question in the negative. Is the petition premature? The petition was not prematurely filed. Upon the promulgation by the Comelec en banc of the February 8, 2010 Resolution which was arrived at without a rehearing in spite of a "deadlock," there was nothing else to be done in the ordinary course of law to ripen the petition. By law, the Comelec en banc is not required to rectify its mistakes upon motion, precisely because of the rule prohibiting a motion for reconsideration of an en banc resolution. Neither are the parties expected to wait and see if the Comelec en banc would motu proprio6 reconsider its resolution and realize the need for a hearing, for the clock is ticking in the meantime and the reglementary period would soon toll the bells of finality of judgment. Certainly, petitioner cannot risk preparing a petition at the eleventh hour when he is very certain that the Comelec would no longer correct itself. In Juliano v. Commission on Elections,7 the Court granted a petition similar to the present and underscored the necessity of the conduct of a rehearing in cases when the Comelec en banc was equally divided in opinion or when the necessary majority cannot be had. It held that the Comelec en banc acts with grave abuse of discretion when it fails to give a party the rehearing required by the Comelec Rules of Procedure.

At the time of filing of the present petition, the issues raised therein were already mature for adjudication. The maturity of the issues, however, was immediately spoiled by mootness. The Comelec en banc eventually ordered on February 10, 2010 the conduct of a rehearing, which order contradicted its earlier pronouncement that its February 8, 2010 Resolution is "immediately executory." The parties notification on February 12, 2010 of this Comelec Order of February 10, 2010 incidentally coincided with the present petitions filing on February 12, 2010. This development effectively forestalled an argument of petitioner in challenging the February 8, 2010 Resolution, and may have mooted an issue, as what happened in Marcoleta v. Commission on Elections8 where the Comelecs subsequent positive action for a rehearing frustrated the resolution of the issue, but it is not an argument for prematurity. After rehearing and having failed to reach the necessary majority, the Comelec en banc, by Order of March 4, 2010, disposed of the motion for reconsideration in the same way as its February 8, 2010 Resolution. This development technically provided the basis for the filing of petitioners supplemental petition which assails said March 4, 2010 Order of the Comelec. As observed by the ponencia, the filing of the supplemental petition was proper. What happens when the necessary majority cannot be reached by the Comelec en banc after a rehearing? The parties cite Section 6, Rule 18 of the Comelec Rules of Procedure, reading: Sec. 6. Procedure if Opinion is Equally Divided . When the Commission en banc is equally divided in opinion, or the necessary majority cannot be had, the case shall be reheard, and if on rehearing no decision is reached, theaction or proceeding shall be dismissed if originally commenced in the Commission; in appealed cases, the judgment or order appealed from shall stand affirmed; and in all incidental matters, the petition or motion shall be denied. (emphasis and underscoring supplied) The bone of contention is the manner of disposition of a motion for reconsideration when in spite of rehearing, no decision is reached by the Comelec en banc which remains equally divided in opinion, or wherein the necessary majority still cannot be had. The rule states that "the action or proceeding shall be dismissed if originally commenced in the Commission." I respectfully differ from the ponencia. There are cases which may be initiated at the Comelec en banc, the voting in which could also result to a stalemate. The Comelec sits en banc in cases specifically provided by the Rules, preproclamation cases upon a vote of a majority of its members, all other cases where a Division is not authorized to act,9 inter alia. These matters include election offense cases,10 contempt proceedings,11 and postponement or declaration of failure of elections and the calling for a special elections.12 In such cases, when the necessary majority in the Comelec en banc cannot be had even after a rehearing of the action, the effect is dismissal of the action. In an election protest originally commenced in the Comelec and a decision is reached 13 by the Division, it is, as the ponencia correctly posits, the banc that shall effectively "complete the process,"14 which position hews well with Justice Presbitero Velasco, Jr.s view of "one integrated process,"15 to which I also agree. A motion for reconsideration before the Comelec en banc is one such proceeding that is a part of the entire procedural mechanism of election cases. Ergo, when the necessary majority in the Comelec en banc cannot be had even after a rehearing, the effect is dismissal of the proceeding. The motion for reconsideration should be dismissed.

As defined by Black, the term "proceeding" may refer to a procedural step that is part of a larger action or special proceeding.16 Black defines "process" as a series of actions, motions or occurrences.17 The word "proceeding" could not have been used as an innocuous term. It was used to refer to matters requiring the resolution of the banc in cases originally commenced in the Comelec that pass through a two-tiered process, as differentiated from actions initiated 18 and totally completed at the banc level. It is a universal rule of application that a construction of a statute is to be favored, and must be adopted if reasonably possible, which will give meaning to every word, clause, and sentence of the statute and operation and effect to every part and provision of it. Following the position of the ponencia, it is observed that in such cases where a Comelec Division dismisses an election protest and the necessary majority is not reached after the rehearing of a motion for reconsideration, the Comelec en banc, in effect, affirms such decision by similarly dismissing the "action." Under my submission, the result is the same but what is dismissed is the "proceeding" which is the motion for reconsideration. There should be no declaration of affirmance since, as the ponencia concedes, there is "no conclusive result in the form of a majority vote." 19 The Comelec en banc should dismiss the proceeding at hand but not the action, petition or case. The glaring difference becomes more apparent when the Comelec Division grants an election protest like that in the present case. Since a majority vote was not attained after rehearing the Motion for Reconsideration, theponencia states that the Comelec en banc should have dismissed the election protest itself or, in effect, vacated the decision of the Division. Again I submit that it is the Motion for Reconsideration that is the "proceeding" which should be dismissed. First, it is absurd for a deliberating body which arrived at "no conclusive result in the form of a majority vote" to do something about a matter on the table, much less to overturn it. Second, the resulting tyranny of the minority is unjust for, in such cases where the Comelec en banc has a quorum of four, the protestee only needs to obtain the vote of just one Commissioner to frustrate the protestants victory that was handed down by three Commissioners. Third, the ponencia incorrectly denotes that a body which could not pronounce a decision can effectively pronounce one and even one contrary to that of a body that could reach a decision. Otherwise stated, it downplays the significance of "the concurrence of a majority," which breathes life to any handiwork of the decision-making power of the Comelec. Certainly, that was not the purpose and principle envisioned by the Comelec Rules of Procedure. Did the Comelec gravely abuse its discretion when it failed to credit petitioners claims? The above discussions notwithstanding, I submit that on the merits of the case, the Comelec gravely abused its discretion amounting to lack or excess of jurisdiction. When the handwritings on the ballots are the subject matter of the election contest, the best evidence would be the ballots themselves as the Comelec can examine or compare these handwritings even without the assistance from handwriting experts, 20 with due consideration to the presence of assisted voters, if any is reflected in the Minutes of Voting. 21 General appearance or pictorial effect is not enough to warrant that two writings are by the same hand. The ballots cannot be invalidated on such ground if they display but a single consistent dissimilarity in any feature which is fundamental to the structure of the handwriting, and whose presence is not capable of reasonable explanation. An exegesis of the semblances or similarities and differences or variations in the master patterns governing letter design is thus imperative. I thus agree with Justice Antonio Carpios position that the Comelec abdicated its positive duty.

The Comelec failed to consider whether there is a type of consistent dissimilarity in a fundamental feature of the handwriting structure of the entries in the ballots. The Comelec did not rebut the presumption of validity of the ballots since it did not take the position that the similarities in the class and individual characteristics do not lean more towards accidental coincidence or that the divergences in class and individual characteristics are superficial. Neither did it point out that the presence of the alleged dissimilarities could be reasonably explained by or attributed to an attempt to disguise the handwriting after examining its fluency and rhythm which may normally vary from one ballot to another but should remain consistent within each ballot. In light of the foregoing discussions, I vote to GRANT the petition. CONCHITA CARPIO MORALES Associate Justice

Footnotes
1

G.R. No. 164439, January 23, 2006, 479 SCRA 487. Id. at 493. Comelec Rules of Procedure, Rule 13, Sec. 1(d).

Securities and Exchange Commission v. PICOP Resources, Inc., G.R. No. 164314, September 26, 2008, 566 SCRA 451, 468; Land Bank of the Philippines v. Ascot Holdings and Equities, Inc., G.R. No. 175163, October 19, 2007, 537 SCRA 396, 405.
4

Ibid; Villamor v. Commission on Elections, G.R. No. 169865, July 21, 2006, 496 SCRA 334, 343.
5

Marcoleta v. Commission on Elections, G.R. No. 181377, April 24, 2009, 586 SCRA 765, 775, where it was held that the Comelec has "x x x the inherent power to amend or control its processes and orders before these become final and executory. It can even proceed to issue an order motu proprio to reconsider, recall or set aside an earlier resolution which is still under its control. The Comelec's own Rules of Procedure authorize the body to amend and control its processes and orders so as to make them conformable to law and justice, and even to suspend said Rules or any portion thereof in the interest of justice and in order to obtain speedy disposition of all matters pending before the Commission."
6

G.R. No. 167033, April 12, 2006, 487 SCRA 263, where the Court differentiated "reconsultation" from "rehearing."
7 8

Supra note 6. Vide Comelec Rules of Procedure, Rule 3, Sec. 2.

Baytan v. Commission on Elections, G.R. No. 153945, February 4, 2003, 396 SCRA 703, 716. The Comelec en banc can directly approve the filing of a criminal information for an election offense.
10

11

Bedol v. Commission on Elections, G.R. No. 179830, December 3, 2009.

Macabago v. Commission on Elections, G.R. No. 152163, November 18, 2002, 392 SCRA 178, 187 citing Republic Act No. 7166, Art. 1, Secs. 4-6.
12

There are cases that are originally cognizable by the Division but is automatically elevated to the Comelec en banc for decision due to lack of majority vote in the Division; vide Comelec Rules of Procedure, Rule 3, Sec. 5(b).
13 14

Decision, p. 12. Concurring Opinion of Velasco, Jr., J., p. 8. Blacks Law Dictionary (6th Ed.), p. 1204. Id. at 1205. Including those automatically elevated to the banc for decision; supra note 13. Decision, p. 12.

15

16

17

18

19

Delos Reyes v. Commission on Elections , G.R. No. 170070, February 28, 2007, 517 SCRA 137, 148 citing Bautista v. Castro, G.R. No. 61260, February 17, 1992, 206 SCRA 305, 312.
20

Id. citing De Guzman v. Commission on Elections, G.R. No. 159713, March 31, 2004, 426 SCRA 698, 707-708.
21

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CONCURRING OPINION VELASCO, JR., J.: Notwithstanding the passage of time, the clear and express provisions of the Constitution on what constitute a majority vote on actions or proceeding before the Commission on Elections (COMELEC) continue and should remain to speak the words it plainly suggests. Given this perspective, I respectfully submit this opinion. A summary of the pertinent facts follows. Petitioner Joselito R. Mendoza (petitioner Mendoza) and respondent Roberto M. Pagdanganan (respondent Pagdanganan) were candidates for the gubernatorial post in the province of Bulacan in the May 14, 2007 elections. With a winning margin of fifteen thousand seven hundred thirty-two (15,732) votes, COMELEC proclaimed petitioner Mendoza as the duly elected governor of Bulacan. On June 1, 2007, respondent Pagdanganan filed an election protest with the COMELEC questioning the outcome of the elections in all the five thousand sixty-six (5,066) precincts which functioned in

the thirteen (13) municipalities and three (3) cities in the province of Bulacan for massive electoral fraud purportedly committed during the elections to favor petitioner Mendoza. Raffled to the Second Division of the COMELEC, the protest was docketed as EPC No. 2007-44. On June 18, 2007, petitioner Mendoza filed an Answer With Counter-Protest 1 denying petitioner Mendozas allegations of massive electoral fraud and claimed that had it not been for the electoral fraud purportedly committed by respondent Pagdanganan in nine municipalities, petitioner Mendoza would have been credited with more votes. Thereafter, a preliminary conference was conducted, after which the COMELEC ordered a revision of the ballots involving the protested and counter-protested precincts. The revision was conducted and supervised by the COMELEC at its premises. Subsequently, on February 20, 2009, the parties submitted their respective memoranda after their respective formal offer of exhibits were admitted. The case was then submitted for resolution. As a result of the revision proceedings, the Second Division of the COMELEC proclaimed respondent Pagdanganan as the duly elected governor of the province of Bulacan in its Resolution2 dated December 1, 2009, the dispositive portion of which reads: WHEREFORE, in view of the foregoing, the election protest is hereby GRANTED. Consequently, the proclamation of Protestee Joselito R. Mendoza is ANNULLED and SET ASIDE. Accordingly, Protestant Roberto M. Pagdanganan is hereby proclaimed as the duly elected Governor of the Province of Bulacan having obtained a total of Three Hundred Forty-Two Thousand Two Hundred Ninety-Five (342,295) votes, with a winning margin of Four Thousand Three Hundred Twenty-One (4,321) votes. Protestee is ordered to IMMEDIATELY vacate the Office of the Provincial Governor of Bulacan; cease and desist from discharging functions thereof; and peacefully turn-over the said office to Protestant Pagdanganan. Let the Department of Interior and Local Government implement this resolution. 3 Subsequently, respondent Pagdanganan filed a Motion for Immediate Execution of Judgment Pending Motion for Reconsideration4 dated December 1, 2009. Petitioner Mendoza, on the other hand, filed an Opposition to the Motion for Execution5 dated December 4, 2009 with the Second Division of the COMELEC and a Motion for Reconsideration6 dated December 4, 2009 with the COMELEC en banc. By Resolution dated February 8, 2010 (the questioned Resolution), the COMELEC en banc, by a 3:3:1 vote, denied the motion for reconsideration filed by petitioner Mendoza. The dispositive portion of the questioned Resolution reads: WHEREFORE, in view of the foregoing, the Commission En Banc DENIES the Motion for Reconsideration for lack of merit. The Resolution of the Commission (Second Division) promulgated on December 1, 2009 ANNULLING the proclamation of JOSELITO R. MENDOZA as the duly elected Governor of Bulacan and DECLARING ROBERTO M. PAGDANGANAN as duly elected to said Office is AFFIRMED with modification. Considering the proximity of the end of the term of the office involved, this Resolution is declared immediately executory.

ACCORDINGLY, the Commission En Banc hereby ISSUES a WRIT OF EXECUTION directing the Provincial Election Supervisor of Bulacan, in coordination with the DILG Provincial Operations Officer to implement the Resolution of the Commission (Second Division) dated December 1, 2009 and this Resolution of the CommissionEn Banc by ordering JOSELITO R. MENDOZA to CEASE and DESIST from performing the functions of Governor of the Province of Bulacan and VACATE said office in favor of ROBERTO M. PAGDANGANAN. xxxx On February 11, 2010, an Urgent Motion to Recall the Resolution Promulgated on February 8, 20107 (Urgent Motion) dated February 10, 2010 was filed by petitioner Mendoza before the COMELEC. In the said Urgent Motion, petitioner Mendoza contends, among others, that the desired majority, as mandated by Section 5, Rule 3 of the COMELEC Rules of Procedure, was not obtained in the COMELEC en banc considering that only three commissioners voted to deny the motion for reconsideration, while one dissented, and the remaining three commissioners took no part. On February 12, 2010, petitioner Mendoza filed before this Court the instant petition questioning the COMELEC Resolution dated February 8, 2010 based on the same grounds he cited in his Urgent Motion and further disputing the appreciation and result of the revision of ballots which favored respondent Pagdanganan. This was subsequently supplemented by petitioner Mendoza with a Supplement to the Petition with a Most Urgent Reiterating Motion for the Issuance of a Temporary Restraining Order or a Status Quo Order8 dated March 8, 2010 filed on even date. In the meantime, the COMELEC en banc, in view of the 3:3:1 vote, issued on February 10, 2010 an Order for the rehearing of the protest. In the said rehearing, the parties agreed to submit the matter for resolution by the COMELEC en banc upon the submission of their respective memoranda. Upon deliberations, the commissioners voted in the same manner, particularly: three concurred, three took no part, and one dissented from the Resolution dated December 1, 2009 of the Second Division of COMELEC. As against the foregoing factual milieu, this Court is now tasked to ascertain whether the COMELEC committed grave abuse of discretion when it rendered, and even subsequently affirmed, the questioned Resolution notwithstanding the absence of the required majority in reaching a decision. Essentially, the issue for this Courts resolution is whether the manner and procedure by which the commissioners of COMELEC voted in the instant case was in accord with its own Rules of Procedure. A careful examination of certain provisions of the Constitution, as well as of the laws applicable in the instant case, will reveal that since the concurrence of the majority of the members of the COMELEC en banc was not achieved, the COMELEC committed grave abuse of discretion in issuing the questioned Resolution affirming the ruling of its Second Division instead of dismissing the election protest of respondent Pagdanganan. All election cases shall be heard and decided in divisions, provided that motions for reconsideration shall be decided by the COMELEC en banc Under Section 3, Article IX-C of the 1987 Constitution, the COMELEC, sitting en banc, does not have the authority to decide election cases in the first instance as this authority belongs to the divisions of the COMELEC. Specifically:

Sec.3. The Commission on Elections may sit en banc or in two divisions, and shall promulgate its rules of procedure in order to expedite disposition of election cases, including pre-proclamation controversies. All such election cases shall be heard and decided in division, provided that motions for reconsideration of decisions shall be decided by the Commission En Banc. As the Court held in Pacificador v. COMELEC:9 Under Sec. 2, Article IV-C of the 1987 Constitution, the COMELEC exercises original jurisdiction over all contests, relating to the election, returns, and qualifications of all elective regional, provincial, and city officials, and appellate jurisdiction over election contests involving elective municipal and barangay officials, and has supervision and control over the board of canvassers. The COMELEC sitting en banc, however, does not have the authority to hear and decide election cases, including pre-proclamation controversies in the first instance, as the COMELEC in division has such authority. The COMELEC en banc can exercise jurisdiction only on motions for reconsideration of the resolution or decision of the COMELEC in division. (Emphasis supplied) As a matter of fact, if the COMELEC en banc renders a decision in an election case in the first instance, said decision is void. As held in Municipal Board of Canvassers of Glan v. COMELEC: 10 Beginning with Sarmiento v. COMELEC and reiterated in subsequent cases, the most recent being Balindong v. COMELEC, the Court has upheld this constitutional mandate and consistently ruled that the COMELEC sitting en banc does not have the requisite authority to hear and decide election cases in the first instance. This power pertains to the divisions of the Commission and any decision by the Commission en banc as regards election cases decided by it in the first instance is null and void for lack of jurisdiction. Verily, it is only when a motion for reconsideration is filed that the COMELEC en banc hears the same. Nonetheless, this does not in any way mean that the filing of such a motion constitutes an appeal to the COMELECen banc. As fittingly pointed out by Commissioner Rene V. Sarmiento in his Dissenting Opinion: Furthermore, no way by any stretch of imagination can this controversy be considered as an appealed case. Yes, it is true that the instant Motion for Reconsideration assails the Resolution of the Second Division. But this does not mean that it is an appeal from the said Second Divisions ruling. Aside from the obvious legal difference between the two reliefs, to construe a Motion for Reconsideration as an appeal would defeat the purpose of the delineation made in Section 6 of Rule 18 of the COMELEC Rules of Procedure with regard to the cases originally commenced and those appealed. Take note that all controversies brought to the Commission, either originally or on appeal with the exception of election offenses, are first heard and decided in the division level. The same is elevated to the Commission en banc when a Motion for Reconsideration has been timely filed. Significantly, the COMELEC, sitting en banc or in divisions, is just one body. By analogy, even the Court which hears and decides cases in divisions and en banc is composed of only one body. Decisions of any division are not appealable to the en banc, and decisions of each division and the en banc form acts of only one Supreme Court.11 The adjudicatory power of the COMELEC consists of both original and appellate jurisdiction A distinction must be made as to whether an election case is brought before the COMELEC in the exercise of itsoriginal or appellate jurisdiction.

As stated in Section 2(2), Article IX-C of the 1987 Constitution, the COMELEC is vested with adjudicatory power consisting of both original and appellate jurisdictions, to wit: Section 2. The Commission on Elections shall exercise the following powers and functions: xxxx (2) Exercise exclusive original jurisdiction over all contests relating to the elections, returns, and qualifications of all elective regional, provincial, and city officials, and appellate jurisdiction over all contests involving elective municipal officials decided by trial courts of general jurisdiction, or involving elective barangay officials decided by trial courts of limited jurisdiction. Decisions, final orders, or rulings of the Commission on election contests involving elective municipal and barangay offices shall be final, executory, and not appealable. Concomitantly, election protests involving elective regional, provincial or city positions fall within the exclusive original jurisdiction of the COMELEC. On the other hand, election protests involving elective municipal and barangay positions fall within the exclusive original jurisdiction of the proper regional trial court and municipal trial court, respectively. The COMELEC, in turn, exercises appellate jurisdiction over the decisions of either court. 12 While the Constitution grants COMELEC appellate jurisdiction, it is clear that such appellate jurisdiction operates as a review by the COMELEC of decisions of trial courts. There is really no appeal within the COMELEC itself. As such, it is absurd to consider the filing of a motion for reconsideration as an appeal from the COMELEC, sitting in a division, to the COMELEC, sitting en banc. At best, the filing of a motion for reconsideration with the COMELEC en banc of a decision or resolution of the division of the COMELEC should be viewed as part of one integrated process. Such motion for reconsideration before the COMELEC en banc is a constitutionally guaranteed remedial mechanism for parties aggrieved by a division decision or resolution. However, at the risk of repetition, it is not an appeal from the COMELEC division to the en banc. Considering the dichotomy of the jurisdiction and powers of the COMELEC, the question now arises as to how the commission en banc should arrive at a decision in the absence of the required majority of all its members. A majority vote of all its members is needed in order for the COMELEC en banc to reach a decision The COMELEC is an independent constitutional commission. As such, the rule set forth by the Constitution as to how constitutional commissions should arrive at a decision applies to it. As sanctioned by Section 7, Article IX-A of the 1987 Constitution: Section 7. Each Commission shall decide by a majority vote of all its members any case or matter brought before it within sixty days from the date of its submission for decision or resolution. A case or matter is deemed submitted for decision or resolution upon the filing of the last pleading, brief, or memorandum required by the Rules of the Commission or by the Commission itself. Unless otherwise provided by this Constitution or by law, any decision, order, or ruling of each Commission may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from receipt of a copy thereof. (Emphasis supplied.)

The foregoing constitutional provision was faithfully observed by the COMELEC when it adopted the same in its own Rules of Procedure. Rule 3, Section 5(a) of the COMELEC Rules of Procedure provides: Section 5. Quorum; Votes Required.(a) When sitting en banc, four (4) Members of the Commission shall constitute a quorum for the purpose of transacting business. The concurrence of a majority of the Members of the Commission shall be necessary for the pronouncement of a decision, resolution, order or ruling. In reinforcing the above-quoted provision, the Court, in Estrella v. COMELEC, 13 prescribed that the majority of all the commissioners is necessary for the pronouncement of a decision or resolution by the COMELEC en banc. Particularly: Since Commissioner Lantion could not participate and vote in the issuance of the questioned order, thus leaving three (3) members concurring therewith, the necessary votes of four (4) or majority of the members of the COMELEC was not attained. The order thus failed to comply with the number of votes necessary for the pronouncement of a decision or order, as required under Rule 3, Section 5(a) of the COMELEC Rules of Procedure which provides: Section 5. Quorum; Votes Required. (a) When sitting en banc, four (4) Members of the Commission shall constitute a quorum for the purpose of transacting business. The concurrence of a majority of the Members of the Commission shall be necessary for the pronouncement of a decision, resolution, order or ruling. WHEREFORE, the instant petition is GRANTED. The Status Quo Ante Order dated November 5, 2003 issued by the COMELEC En Banc is hereby NULLIFIED. This Resolution is IMMEDIATELY EXECUTORY. (Emphasis in the original.) In cases, however, where the COMELEC en banc is equally divided in opinion or the necessary majority vote cannot be obtained, Rule 18, Section 6 of the 1993 COMELEC Rules of Procedure applies: SEC. 6. Procedure if Opinion is Equally Divided. When the Commission en banc is equally divided in opinion; or the necessary majority cannot be had, the case shall be reheard, and if on rehearing no decision is reached, the action or proceeding shall be dismissed if originally commenced in the Commission; in appealed cases, the judgment or order appealed from shall stand affirmed; and in all incidental matters, the petition or motion shall be denied. Based on the above-cited provision, if no decision is reached after the case is reheard, there are two different remedies available to the COMELEC, to wit: (1) dismiss the action or proceeding, if the case was originally commenced in the COMELEC; or (2) consider as affirmed the judgment or order appealed from, in appealed cases. This rule adheres to the constitutional provision that the COMELEC must decide by a majority of all its members. Notably, it is evident that when Rule 18, Section 6 of the 1993 COMELEC Rules of Procedure speaks of cases originally commenced in the COMELEC, the reference is to election protests involving elective regional, provincial or city positions falling within its exclusive original jurisdiction. On the other hand, when the same provision mentioned appealed cases, this has reference to election protests involving elective municipal and barangay positions cognizable by the COMELEC in the exercise of its appellate jurisdiction.

In the first instance, an election protest is originally commenced before the COMELEC, which first decides by the division. If a motion for reconsideration is subsequently filed with the COMELEC en banc and no majority decision is reached even after a rehearing, then pursuant to Section 6, Rule 18 of the COMELEC Rules of Procedure, the election protest shall be dismissed. In the second instance, the trial court originally decides an election protest. If the case is brought on appeal to the COMELEC, which again shall first act thru a division, the divisions decision may become the subject of a motion for reconsideration filed with the COMELEC en banc. And if before the en banc a majority decision is not reached even after a rehearing, then, also pursuant to Section 6, Rule 18 of the COMELEC Rules of Procedure, the appealed decision stands affirmed. In both cases, however, if no motion for reconsideration is filed with the COMELEC en banc, the decision or resolution of the division shall remain. Verily, since the election protest in the case at bar involves an elective provincial position, specifically, the gubernatorial post in the province of Bulacan, exclusive original jurisdiction over which is vested in the COMELEC, the election protest filed by respondent Pagdanganan against petitioner Mendoza should be dismissed for lack of necessary majority vote in the COMELEC en banc. On a final note, it is worthwhile to remember the Courts ruling in Yangco v. The Division of the Court of First Instance of the City of Manila, 14 which warns us of the dangers in making unnecessary interpretation of clear and unambiguous provisions of law: There is no need for interpretation or construction of the word in the case before us. Its meaning is so clear that interpretation and construction are unnecessary. Our simple duty is to leave untouched the meaning with which the English language has endowed the word; and that is the meaning which the ordinary reader would accord to it on reading a sentence in which it was found. Where language is plain, subtle refinements which tinge words so as to give them the color of a particular judicial theory are not only unnecessary but decidedly harmful. That which has caused so much confusion in the law, which has made it so difficult for the public to understand and know what the law is with respect to a given matter, is in considerable measure the unwarranted interference by judicial tribunals with English language as found in statutes and contracts, cutting out words here and inserting them there, making them fit personal ideas of what the legislature ought to have done or what parties should have agreed upon, giving them meanings which they do not ordinarily have, cutting, trimming, fitting, changing and coloring until lawyers themselves are unable to advise their clients as to the meaning of a given statute or contract until it had been submitted to some court for its interpretation and construction. As we said in the case of Lizarraga Hermanos vs. Yap Tico (24 Phil. Rep., 504, 513): Construction and interpretation come only after it has been demonstrated that application is impossible or inadequate without them. They are the very last functions which a court should exercise. The majority of the laws need no interpretation or construction. They require only application, and if there were more application and less construction, there would be more stability in the law, and more people would know what the law is. Accordingly, I vote to grant the petition. PRESBITERO J. VELASCO, JR. Associate Justice

Footnotes
1

Rollo, pp. 947-1025. Id. at 221-931. Id. at 930. Id. at 1219-1238. Id. at 1408-1418. Id. at 1239-1390. Id. at 5136-5145. Id. at 5288-5303. G.R. No. 178259, March 13, 2009, 581 SCRA 372, 384. G.R. No. 150946, October 23, 2003, 414 SCRA 273, 276.

10

Apo Fruits Corporation v. Court of Appeals, G.R. No. 164195, April 30, 2008, 553 SCRA 237, 248.
11 12

See Borja v. COMELEC et al., G.R. No. 120140, August 21, 1996, 260 SCRA 604. G.R. No. 160465, April 28, 2004, 428 SCRA 315, 320. No. L-10050, January 6, 1915, 29 Phil 183.

13

14

The Lawphil Project - Arellano Law Foundation

DISSENTING OPINION LEONARDO-DE CASTRO, J.: Before the Court is a Petition for Certiorari with an Urgent Prayer for the Issuance of a Temporary Restraining Order and/or a Status Quo Ante Order and Writ of Preliminary Injunction filed by Joselito R. Mendoza (petitioner) against the Commission on Elections (COMELEC) and Roberto M. Pagdanganan (respondent Pagdanganan), assailing the COMELECs Resolution1 promulgated on February 8, 2010 inEPC NO. 2007-44, entitled "Roberto M. Pagdanganan versus Joselito R. Mendoza" (the questioned Resolution).

The antecedent facts are summarized below. Petitioner and respondent Pagdanganan were rival candidates for the gubernatorial position in the Province of Bulacan during the May 14, 2007 elections. After the COMELEC count, petitioner Mendoza ranked first and bested respondent Pagdanganan with a winning margin of Fifteen Thousand Seven Hundred Thirty-Two (15,732) votes. Thus, petitioner was proclaimed as the duly elected Governor of the Province of Bulacan. Respondent Pagdanganan filed an Election Protest with the COMELEC on June 1, 2007 impugning the results of the elections in all the five thousand sixty-six (5,066) precincts which functioned in the thirteen (13) municipalities and three (3) cities in the province of Bulacan on the basis of massive electoral fraud allegedly committed during the elections to ensure the victory of petitioner. This election protest was raffled to the Second Division of the COMELEC and was docketed as EPC No. 2007-44. On June 18, 2007, petitioner filed an Answer With Counter-Protest2 denying the allegation of massive electoral fraud and claiming that he would have been credited with more votes had it not been for the electoral fraud allegedly committed by respondent Pagdanganan in nine municipalities. Then on June 5, 2008, petitioner filed a Manifestation and Motion for Investigation of Substitution of Ballots with Fake/Spurious Ballots3 due to the alleged alarming number of fake/spurious ballots, which were substituted for the genuine ballots after the voting and conduct of election in the different precincts of the municipalities of Bulacan and were uncovered during the revision of ballots. After the preliminary conference, the COMELEC ordered a revision of the ballots involving the protested and counter-protested precincts, and this was conducted and supervised by the COMELEC at its premises. After their respective formal offers of exhibits were admitted, the parties submitted their respective memoranda on February 20, 2009. The case was then submitted for resolution. On March 2, 2009, the COMELEC transferred the ballot boxes containing the ballots, election returns, and other pertinent election documents of both protested and unprotested precincts of Bulacan to the Senate Electoral Tribunal (SET) pursuant to SET Resolution No. 07-54 in connection with the protest filed by Aquilino Pimentel III against Juan Miguel Zubiri. Petitioner thereafter filed a Motion for Suspension of Further Proceedings. The COMELEC issued an Order4 denying petitioners motion for lack of merit. On July 8, 2009, petitioner went to this Court and filed a Petition for Prohibition & Certiorari with Urgent Prayer for the Issuance of a Temporary Restraining Order and Writ of Preliminary Injunction,5 docketed asG.R. No. 188308, to prohibit the COMELEC from proceeding with the appreciation by its personnel of ballots in the custody of the SET. On July 14, 2009, this Court issued a Status Quo Order6 in G.R. No. 188308 enjoining the COMELEC Second Division from further proceeding with the revision of the ballots until further notice from the Court. This Order was lifted subsequently and the petition was dismissed by the Court En Banc in its Decisiondated October 15, 2009, wherein the Court ruled that, on the basis of the standards set by Section 4 of the COMELEC Rules of Procedure (the COMELEC Rules) and of the Constitution itself in the handling of election cases, the COMELEC's consideration of the provincial election contest, specifically its appreciation of the contested ballots at the SET premises, while the same ballots were also under consideration by the SET for another election contest, was a valid exercise of discretion. The Court further ruled that such COMELEC action was "a suitable and reasonable process within the exercise of its jurisdiction over provincial election contests, aimed at expediting

the disposition of [the] case, and with no adverse, prejudicial or discriminatory effects on the parties to the contest that would render the rule unreasonable." 7 The COMELEC Second Division, as a result of the revision proceedings, proclaimed respondent Pagdanganan as the duly elected Governor of the Province of Bulacan in a Resolution8 dated December 1, 2009 in EPC No. 2007-44, the dispositive portion of which reads: WHEREFORE, in view of the foregoing, the election protest is hereby GRANTED. Consequently, the proclamation of Protestee Joselito R. Mendoza is ANNULLED and SET ASIDE. Accordingly, Protestant Roberto M. Pagdanganan is hereby proclaimed as the duly elected Governor of the Province of Bulacan having obtained a total of Three Hundred Forty-Two Thousand Two Hundred Ninety-Five (342,295) votes, with a winning margin of Four Thousand Three Hundred Twenty-One (4,321) votes. Protestee is ordered to IMMEDIATELY vacate the Office of the Provincial Governor of Bulacan; cease and desist from discharging the functions thereof; and peacefully turn-over the said office to Protestant Pagdanganan. Let the Department of Interior and Local Government implement this resolution. 9 Petitioner filed an Opposition to the Motion for Execution10 with the COMELEC Second Division on December 7, 2009 and a Motion for Reconsideration11 with the COMELEC En Banc while respondent Pagdanganan filed aMotion for Immediate Execution of Judgment Pending Motion for Reconsideration.12 After deliberations on the Motion for Reconsideration in EPC No. 2007-44, the COMELEC En Banc voted as follows: Commissioners Nicodemo T. Ferrer, Lucenito N. Tagle, and Elias R. Yusoph voted to DENY the motion for reconsideration for lack of merit 13; Commissioner Rene V. Sarmiento DISSENTED and wrote a separate opinion 14; while three Commissioners TOOK NO PART, namely, Chairman Jose A. R. Melo, Commissioner Armando C. Velasco, and Commissioner Gregorio Y. Larrazabal. Thereafter, the COMELEC En Banc issued the questioned Resolution dated February 8, 2010, wherein it held: WHEREFORE, in view of the foregoing, the Commission En Banc DENIES the Motion for Reconsideration for lack of merit. The Resolution of the Commission (Second Division) promulgated on December 1, 2009 ANNULLING the proclamation of JOSELITO R. MENDOZA as the duly elected Governor of Bulacan and DECLARING ROBERTO M. PAGDANGANAN as duly elected to said Office is AFFIRMED with modification. Considering the proximity of the end of the term of the office involved, this Resolution is declared immediately executory. ACCORDINGLY, the Commission En Banc hereby ISSUES a WRIT OF EXECUTION directing the Provincial Election Supervisor of Bulacan, in coordination with the DILG Provincial Operations Officer to implement the Resolution of the Commission (Second Division) dated December 1, 2009 and this Resolution of the Commission En Banc by ordering JOSELITO R. MENDOZA to CEASE and DESIST from performing the functions of Governor of the Province of Bulacan and to VACATE said office in favor of ROBERTO M. PAGDANGANAN.

Let a copy of this Resolution be furnished the Secretary of the Department of Interior and Local Government, the Provincial Election Supervisor of Bulacan, and the DILG Provincial Operations Officer of the Province of Bulacan. 15 On February 11, 2010, petitioner filed an Urgent Motion to Recall the Resolution Promulgated on February 8, 2010 before the COMELEC and raised as grounds, among others, that: (1) the resolution was issued without the concurrence of the majority of the members of the Commission as mandated by Section 5, Rule 3 of the COMELEC Rules, and without conducting a rehearing under Section 6, Rule 18 of the same rule; (2) no notice was issued for the promulgation of the resolution as mandated by Section 5, Rule 18 of the said rule; and (3) the resolution could not be immediately executory, as the appealed case was an ordinary action, which can only become final and executory after 30 days from its promulgation under Section 13, Rule 18 of the adverted rule. Petitioner argued that the desired majority was not obtained in the voting of the COMELEC En Banc, considering that only three Commissioners voted to deny the Motion for Reconsideration, three Commissioners took no part, and one Commissioner dissented from the Resolution. On February 12, 2010, petitioner filed before this Court the instant petition assailing the COMELEC Resolution dated February 8, 2010; raising the same grounds that he had cited in his Urgent Motion to Recall the Resolution Promulgated on February 8, 2010; and, in addition, disputing the appreciation and result of the revision of the ballots, which resulted in respondent Pagdanganans proclamation as the duly elected Governor of the Province of Bulacan. Meanwhile, on February 10, 2010, the COMELEC En Banc issued an Order16 for the rehearing of the protest, stating as follows: Considering that there was no majority vote of the members obtained in the Resolution of the CommissionEn Banc promulgated on February 8, 2010, the Commission hereby orders the rehearing of the above-entitled case on Monday, February 15, 2010 at 2:00 oclock in the afternoon. The Clerk of the Commission is directed to notify all parties and counsels concerned. (Emphases added.) During the rehearing on February 15, 2010, the parties agreed to submit the matter for resolution by the COMELEC En Banc upon the submission of their respective memoranda, without further argument. After deliberation, the Commissioners voted in the same way: three concurred, three took no part, and one dissented from the Resolution of the COMELEC Second Division dated December 1, 2009. Respondent Pagdanganan filed his Comment (To Petition for Certiorari) on February 22, 2010, while the COMELEC, represented by the Office of the Solicitor General, filed its Comment on March 1, 2010 before this Court. Both respondents allege that the instant petition was prematurely filed in view of the scheduled rehearing of the case on February 15, 2010, and that petitioner is guilty of forum shopping for seeking relief from the questioned Resolution simultaneously before the COMELEC and this Court. Petitioner, in his Reply to Respondent Pagdanganans Comment dated March 2, 2010, contends that he fully disclosed to this Court the pendency before the COMELEC of his Urgent Motion to Recall the Resolution Promulgated on February 8, 2010; and explains that he was just compelled to file the instant petition, since the questioned resolution was already accompanied by a writ of execution directing the Provincial Election Supervisor of Bulacan and the Department of Interior and Local Government (DILG) Provincial Operations Officer to implement it despite the fact that the said ruling had not yet become final and executory under Section 13, Rule 18 of the COMELEC Rules.

Petitioner further claims that the COMELECs order for the rehearing of the case was not actually and legitimately served on his counsel, as a copy of the said order for rehearing was initially handed to a revisor while he was at the premises of the COMELEC; and a copy of the said order was received only in the "late hours of the morning of February 12, 2010" when the instant petition was already on its way to filing. In an Order17 dated March 4, 2010, the COMELEC En Banc denied protestees Motion for Reconsideration and granted protestants Motion for Immediate Execution. It also directed the Clerk of the Commission to issue a Writ of Execution directing the Provincial Election Supervisor of Bulacan, in coordination with the DILG Provincial Operations Officer of Bulacan, to implement the Resolution of the "Commission (Second Division)" dated December 1, 2009; and ordered petitioner to cease and desist from performing the functions of the Governor of the Province of Bulacan and to vacate said office in favor of respondent Pagdanganan. Pursuant to this, on March 5, 2010, the COMELEC Electoral Contests Adjudication Department (ECAD) issued a Writ of Execution,18 while the COMELEC En Banc issued an Order19 directing the ECAD personnel to deliver by personal service copies of the March 4, 2010 Order of the COMELEC En Banc and the corresponding March 5, 2010 Writ of Execution to the parties. Petitioner filed on March 5, 2010 an Urgent Motion to Declare Null & Void and Recall Latest En Banc Resolution Dated March 4, 2010 20 and an Urgent Motion to Set Aside March 4, 2010 En Banc Resolution Granting Protestants Motion for Execution Pending Motion for Reconsideration21 with the COMELEC En Banc. On March 8, 2010, petitioner filed with the Court a Supplement to the Petition with a Most Urgent Reiterating Motion for the Issuance of a Temporary Restraining Order or a Status Quo Order22 arguing that: (1) the election protest should have been dismissed after no majority vote was obtained by respondent Pagdanganan after rehearing; (2) the Order dated March 4, 2010 and the writ of execution dated March 5, 2010 were null and void, as they pertained to a wrong Resolution of the COMELEC Second Division; (3) no valid decision could have been rendered by the COMELEC En Banc without the originals of the ballots having been appreciated; (4) public respondent ignored the recent ruling of the Court in Corral v. Commission on Elections,23 which made the Resolutions dated December 1, 2009 and February 8, 2010 null and void; and (5) all of the above are clear revelations that there is something terribly wrong in the adjudication of the above case both on the Division and on the En Banc levels - which the Honorable Court should not allow to bear any further illicit consequences through the immediate issuance of a temporary restraining order/status quo ante order. Respondent Pagdanganan filed a Most Respectful Urgent Manifestation with the Court citing petitioners blatant forum shopping in pursuing simultaneous reliefs both before the Court and the COMELEC En Banc. In a Resolution dated March 9, 2010, this Court resolved to grant petitioners prayer for the issuance of a status quo ante order. The pertinent portion of said resolution reads as follows: Acting on Petitioners prayer for the urgent issuance of a temporary restraining order and/or status quo ante order in his Petition for Certiorari and Supplement to the Petition, the Court FURTHER RESOLVES to issue a STATUS QUO ANTE ORDER, for the maintenance of the situation prevailing at the time of the filing of the instant Petition for a period of seven (7) days. Specifically, respondents and all other persons acting on their authority are enjoined from enforcing or executing the following issuances in EPC Case No. 2007-44: (1) Resolution dated December 1, 2009 issued by the COMELEC Second Division; and (2) Resolution dated February 8, 2010, Order dated March 4, 2010, and Writ of Execution dated March 5, 2010 issued by the COMELEC En Banc, which ordered petitioner to cease and desist from performing the functions of the Governor of the Province of Bulacan and to vacate said office in favor of respondent [Pagdanganan]. This STATUS QUO

ANTE ORDER shall be effective immediately and continuing until March 16, 2010, unless otherwise ordered by this Court. On March 16, 2010, this Court issued another Resolution extending the status quo order for another seven (7) days or until March 23, 2010 unless otherwise ordered by this Court. Respondent Pagdanganan filed on March 10, 2010 a Manifestation and Comment to Petitioners Supplement to the Petition with a Most Urgent Reiterating Motion for the Issuance of a Temporary Restraining Order or a Status Quo Order. Petitioner filed a Manifestation with Motion to Appreciate Ballots Invalidated as Written by One Person and Marked Ballots on March 12, 2010. The issues before the Court are: 1. WHETHER PETITIONER IS GUILTY OF FORUM SHOPPING; 2. WHETHER THE INSTANT PETITION IS PREMATURE; 3. WHETHER COMELEC GRAVELY ABUSED ITS DISCRETION TANTAMOUNT TO LACK OF OR IN EXCESS OF JURISDICTION WHEN IT ISSUED THE QUESTIONED RESOLUTION WITHOUT THE CONCURRENCE OF THE MAJORITY OF THE MEMBERS OF THE COMMISSION AND WITHOUT CONDUCTING A REHEARING OF THE CASE; 4. WHETHER COMELEC GRAVELY ABUSED ITS DISCRETION TANTAMOUNT TO LACK OF OR IN EXCESS OF JURISDICTION WHEN IT FAILED TO CREDIT THE CLAIMS OF THE PETITIONER; 4.1 WHETHER COMELEC GRAVELY ABUSED ITS DISCRETION TANTAMOUNT TO LACK OF OR IN EXCESS OF JURISDICTION WHEN IT INVALIDATED 9,160 BALLOTS OF THE PETITIONER AS WRITTEN BY ONE PERSON IN PAIRS OR IN GROUP; and 4.2 WHETHER COMELEC GRAVELY ABUSED ITS DISCRETION TANTAMOUNT TO LACK OF OR IN EXCESS OF JURISDICTION WHEN IT INVALIDATED THOUSANDS OF VALID BALLOTS OF THE PETITIONER AS SPURIOUS, WRITTEN BY TWO OR MORE PERSONS AND AS MARKED BALLOTS WITH NO FACTUAL AND LEGAL BASIS.24 DISCUSSION 1. WHETHER PETITIONER IS GUILTY OF FORUM SHOPPING Respondent Pagdanganan and the COMELEC both claim that petitioners act of filing on February 11, 2010 with the COMELEC a Motion to Recall the Resolution Promulgated on February 8, 2010 and praying that the questioned Resolution be immediately recalled by the latter, and thereafter filing on the following day, i.e., onFebruary 12, 2010, with this Court the instant Petition for Certiorari with Prayer for a Temporary Restraining Order and/or Status Quo Order asking, among others, that the questioned Resolution be set aside, undeniably constitute forum shopping;25 that at the time of the filing of the case at bar, petitioner did not disclose his act of filing a Motion to Recall with the COMELEC; and that petitioner sought to have this procedural lapse cured through his Manifestation and Motion to Admit Further Documents for Compliance and Additional Annexes to

the Petitionfiled on February 15, 2010, with a modified "Verification and Certification of Non-Forum Shopping" wherein he had inserted a clause saying, "[t]hat other than the Motion to Recall the Resolution Promulgated on February 8, 2010 which I filed before the Commission on Elections En Banc on February 11, 2010, I have not commenced any other action or proceeding involving the same issues x x x."26 Petitioners actions do constitute forum shopping, as this term was defined in Santos v. Commission on Elections,27 cited by the COMELEC in its Comment, the pertinent portions of which read as follows: Santos is Guilty of Forum-Shopping Forum shopping is an act of a party, against whom an adverse judgment or order has been rendered in one forum, of seeking and possibly securing a favorable opinion in another forum, other than by appeal or special civil action for certiorari. It may also be the institution of two or more actions or proceedings grounded on the same cause on the supposition that one or the other court would make a favorable disposition. xxxx Santos stated in his petition before this Court that on 9 July 2004, he filed a motion for reconsideration of the COMELEC First Division's Resolution. However, he did not disclose that at the time of the filing of his petition, his motion for reconsideration was still pending before the COMELEC En Banc. Santos did not also bother to inform the Court of the denial of his motion for reconsideration by the COMELEC En Banc. Had Asistio not called this Court's attention, we would have ruled on whether the COMELEC First Division committed grave abuse of discretion in dismissing SPC No. 04-233, which is one of the issues raised by Santos in this petition. This act of Santos alone constitutes a ground for this Court's summary dismissal of his petition. (Emphasis added.) In the case at bar, petitioners claim that he was compelled to seek immediate redress from this Court since the questioned Resolution had already incorporated a Writ of Execution does not justify his actions, as this does not take away the fact that he had a pending Motion to Recall with the COMELEC En Banc when he filed the instant petition questioning the Resolution issued by the COMELEC En Banc on February 8, 2010. This simultaneous filing of two actions in different fora involving the same Resolution is an act of malpractice precisely prohibited by the rules against forum shopping, since, like in this instance, it adds to the congestion of the dockets of the Court, trifles with the Courts rules, and hampers the administration of justice. On this ground alone, this petition should be dismissed, however, considering the public interest involved in this case, specifically in the province of Bulacan where the people now eagerly await the Courts pronouncement as to who is their duly-elected governor, I have opted to discuss a few more issues below to address the concerns raised by both parties. 2. WHETHER THE INSTANT PETITION IS PREMATURE It is clear from the events immediately succeeding the filing of this petition that it was, as correctly averred by respondents, premature. The parties do not dispute the fact that this petition was filed during the pendency of theUrgent Motion to Recall the Resolution Promulgated on February 8, 2010 filed on February 11, 2010 by petitioner and the scheduled "re-hearing" of the case on February 15, 2010 before the COMELEC. Respondent COMELEC aptly pointed out that there was

nothing to judicially pass upon at this time considering that, when the instant petition was filed, the COMELEC had yet to make a final ruling on the protest of respondent Pagdanganan. In Ambil, Jr. v. Commission on Elections, 28 the Court held: In a long line of cases, this Court has held consistently that "before a party is allowed to seek the intervention of the court, it is a pre-condition that he should have availed of all the means of administrative processes afforded him. Hence, if a remedy within the administrative machinery can still be resorted to by giving the administrative officer concerned every opportunity to decide on a matter that comes within his jurisdiction, then such remedy should be exhausted first before the courts judicial power can be sought. The premature invocation of courts intervention is fatal to ones cause of action." Further proof that this petition is premature is the fact that the rehearing conducted on February 15, 2010 rendered moot and academic the primary issues raised by petitioner regarding the questioned Resolution, specifically, "whether or not [the COMELEC] gravely abused its discretion tantamount to lack of or in excess of jurisdiction when it issued the assailed resolution without the concurrence of the majority of the members of the Commission and without conducting a rehearing of the case," as well as without issuing a notice of promulgation of the said assailed Division Resolution, and before it had attained finality.29 The COMELEC Rules require that a rehearing be conducted when the necessary majority is not reached in the En Banc level. This was already complied with on February 10, 2010 when the COMELEC issued an Order scheduling a rehearing of the case, and fulfilled when such hearing actually took place on February 15, 2010, after which the COMELEC issued an Order dated March 4, 2010. Petitioners act of filing a Supplement to the Petition with a Most Urgent Reiterating Motion for the Issuance of a Temporary Restraining Order or a Status Quo Order on March 8, 2010 that dealt with the COMELEC En Bancs Order dated March 4, 2010, that in effect amends the instant petition to include a new subject matter, i.e., the Order dated March 4, 2010, and new issues as mentioned above, should not be allowed to take the place of a proper petition, otherwise, we would merely be condoning petitioners acts of forum shopping, premature filing, and his overall tendency to carelessly trifle with our rules to suit his needs. What petitioner should have done after the rehearing was to file a new petition before this Court questioning the Order dated March 4, 2010, and not to merely "amend" his petition by filing a "Supplement," as such Order already raised new issues, e.g., the alleged lack of the necessary majority upon rehearing, the alleged erroneous dispositive portion of the Order, and other matters not anymore covered by the original petition. Be that as it may, if we are to temporarily set aside our technical rules in the interest of justice, and we take a look into petitioners arguments in his "Supplement to the Petition" against the Order dated March 4, 2010, we would still arrive at the same conclusion that the petition should be dismissed. As a result of the rehearing, petitioner raises a new argument before this Court, that the Order of the COMELECEn Banc dated March 4, 2010 referred to a wrong Resolution. The said Order provides: "the Second Divisions Resolution, dated December 1, 2009 denying protestees Motion for Reconsideration and granting protestants Motion for Immediate Execution is hereby affirmed." Petitioner points out that the December 1, 2009 Resolution of the COMELEC Second Division neither denied petitioners Motion for Reconsideration nor granted respondent Pagdanganans Motion for Immediate Execution. I agree to the extent that the Order of March 4, 2010 should have referred to the February 8, 2010 Resolution of the COMELEC En Banc. However, the disposition of the Motion for Reconsideration in the March 4, 2010 Order, even with such oversight, is the same,

which is to affirm the Denial of protestees motion for reconsideration and the grant of protestants Motion for Immediate Execution. 3. WHETHER COMELEC GRAVELY ABUSED ITS DISCRETION TANTAMOUNT TO LACK OF OR IN EXCESS OF JURISDICTION WHEN IT ISSUED THE ASSAILED RESOLUTION WITHOUT THE CONCURRENCE OF THE MAJORITY OF THE MEMBERS OF THE COMMISSION AND WITHOUT CONDUCTING A REHEARING OF THE CASE Petitioner argues that the questioned Resolution of February 8, 2010 was issued without the concurrence of the majority of the members of the COMELEC as mandated by Rule 3, Section 5 of the COMELEC Rules and without conducting a rehearing under Rule 18, Section 6 thereof. According to petitioner, since only three Commissioners concurred with the assailed Resolution, the desired majority of four concurring members for the pronouncement of a resolution was not attained, and a rehearing should have been conducted by the COMELEC En Banc. After the rehearing, the same number of votes were cast at the COMELEC En Banc. The Chairman and two (2) Commissioners inhibited themselves from taking part in the case; three (3) Commissioners voted to deny the protestees Motion for Reconsideration and to grant protestants Motion for Immediate Execution; and one (1) Commissioner dissented. The COMELEC Rules provide the instances when a Commissioner may be disqualified from voting or may voluntarily inhibit himself from sitting in a case, to wit: RULE 4 Disqualification and Inhibition SECTION 1. Disqualification or Inhibition of Members. (a) No Member shall sit in any case in which he or his spouse or child is related to any party within the sixth civil degree or consanguinity or affinity, or to the counsel of any of the parties within the fourth civil degree of consanguinity or affinity, or in which he has publicly expressed prejudgment as may be shown by convincing proof, or in which the subject thereof is a decision promulgated by him while previously serving as presiding judge of an inferior court, without the written consent of all the parties, signed by them and entered in the records of the case; Provided, that no Member shall be the "ponente" of an en banc decision/resolution on a motion to reconsider a decision/resolution written by him in a Division. (b) If it be claimed that a Member is disqualified from sitting as above provided, the party raising the issue may, in writing, file his objection with the Commission, stating the grounds therefor. The member concerned shall either continue to participate in the hearing or withdraw therefrom, in accordance with his determination of the question of his disqualification. His decision thereon shall forthwith be made in writing and filed with the Commission for proper notation and with the records of the case. No appeal or stay shall be allowed from, or by reason of, his decision in favor of his own competency until after final judgment in the case. (c) A Member may, in the exercise of his sound discretion, inhibit himself from sitting in a case for just or valid reasons other than those mentioned above. (Emphasis ours.) The three Commissioners who did not take part when the COMELEC En Banc deliberated on petitioners Motion for Reconsideration in EPC No. 2007-44 gave their respective reasons for their inhibition. Chairman Jose A. R. Melo cited his relationship with the parties and their respective counsel; Commissioner Armando C. Velasco stated in his Explanation 30 dated February 8, 2010 that

he could not take part in the deliberation because a proper re-examination of the original ballots subject of the case was not feasible at that time, considering that the same were under the custody of the Senate Electoral Tribunal (SET); while Commissioner Gregorio Y. Larrazabal wrote in his Explanation31 likewise dated February 8, 2010, that from February 2004 to January 2008, he was the Provincial Election Supervisor (PES) IV in the Province of Bulacan and had related to the parties in such capacity. Furthermore, he had served as the PES during the 2007 elections, the results of which were being questioned before the COMELEC, and he concluded that considering the foregoing, his moral and ethical beliefs had constrained him from participating so as to secure the peoples faith and confidence in the COMELECs impartiality and fairness. 32 It appears that the inhibition by the three Commissioners was proper and in accordance with the COMELEC Rules. The said Commissioners used their sound discretion, which they were allowed to do under the present COMELEC rules. Notwithstanding their voluntary inhibition, there still was a quorum when the COMELEC En Banc deliberated on petitioners Motion for Reconsideration with the participation of the remaining four out of the seven Commissioners. Moreover, with regard to the February 8, 2010 Resolution, the issue of lack of necessary majority had become moot because the COMELEC En Banc subsequently issued an Order for the rehearing of petitioners Motion for Reconsideration and respondent Pagdanganans Motion for Execution of the Resolution issued by its Second Division, as required by the COMELEC Rules. The rehearing was actually conducted on February 15, 2010. After the matter was submitted for resolution, the COMELEC En Banc issued an Order33 dated March 4, 2010, stating as follows: There is no issue on the presence of a quorum when the foregoing voting was conducted, as the seven (7) members of the Commission were present when the case was deliberated on, and they announced their respective votes. Nevertheless, the voting on the twin motions as indicated above wherein three (3) commissioners voted to deny protestees Motion for Reconsideration and grant the protestants Motion for Immediate Execution Pending Motion for Reconsideration, and one (1) commissioner dissenting, clearly shows that at least four (4) commissioners participated, and, hence, there was a quorum. The case of Estrella vs. COMELEC is applicable. In Estrella the Supreme Court laid down the rule that the COMELEC en banc shall decide a case on matter[s] brought before it by a majority vote of "all its members," and NOT majority of the members who deliberated and voted thereon. In the present case, the majority of four (votes) was not attained as only three (3) commissioners concurred in the aforesaid Resolution denying protestees Motion for Reconsideration and granting protestants Motion for Immediate Execution pending the protestees Motion for Reconsideration. Hence, the subject Resolution may not yet be promulgated. It is by virtue of this impasse that the Commission en bancscheduled a rehearing of the case as mandated by the Rules. At the rehearing conducted on February 15, 2010, the parties agreed to submit the matter for resolution by the Commission en banc upon the submission of their respective memoranda, without further argument. The parties having submitted their respective memoranda, the matter was deliberated on by the Commission en banc and the seven (7) members maintained their respective stands (3 votes concurring-1 vote dissenting-3 stating "no part") on the Resolution of the Second Division dated December 1, [2009]. Hence, pursuant to Section 6, Rule 18, COMELEC Rules of Procedure, the latter is deemed affirmed. WHEREFORE, premises considered, and, applying the provision of Rule 18, Section 6 of the COMELEC Rules of Procedure, the Second Divisions Resolution, dated December 1, 2009, denying protestees Motion for Reconsideration and granting protestants Motion for Immediate Execution is herby AFFIRMED.

ACCORDINGLY, the Clerk of the Commission, ECAD, is hereby ordered to forthwith ISSUE a WRIT OF EXECUTION directing the Provincial Election Supervisor of Bulacan, in coordination with the DILG Provincial Operations Officer of Bulacan, to implement the Resolution of the Commission (Second Division) dated December 1, 2009, and this Order of the Commission by ordering JOSELITO R. MENDOZA to CEASE AND DESIST from performing the functions of the Governor of the Province of Bulacan and to VACATE said office in favor ofROBERTO M. PAGDANGANAN. Let a copy of this Order be furnished the Secretary of the Department of Interior and Local Government, the Provincial Election Supervisor of Bulacan and the DILG Provincial Operations Officer of the Province of Bulacan. 34 What is left for determination regarding this issue is the validity of the Order dated March 4, 2010, because a majority of four votes was still not reached even after rehearing. To do this, it is necessary to look into the COMELEC Rules, as amended, wherein the manner by which the COMELEC shall transact business is spelled out, and we quote the relevant portions below: RULE 3 How the Commission Transacts Business xxxx SECTION 3. The Commission Sitting in Divisions. The Commission shall sit in two (2) Divisions to hear and decide protests or petitions in ordinary actions, special actions, special cases, provisional remedies, contempt and special proceedings except in accreditation of citizens arms of the Commission. RULE 18 Decisions xxxx SECTION 6. Procedure if Opinion is Equally Divided. When the Commission en banc is equally divided in opinion, or the necessary majority cannot be had, the case shall be reheard, and if on rehearing no decision is reached, the action or proceeding shall be dismissed if originally commenced in the Commission; in appealedcases, the judgment or order appealed from shall stand affirmed; and in all incidental matters, the petition ormotion shall be denied. (Emphasis ours.) The lone dissenter in both the questioned Resolution and the March 4, 2010 Order, Commissioner Rene V. Sarmiento, wrote that Rule 18, Section 6 of the COMELEC Rules should be read to mean that "in the event that even after a rehearing there is still an impasse as regards the opinion of the Commission En Banc, two different remedies are recognized; first, the case shall be dismissed if it was originally commenced in the Commission; and second, in appealed cases, the judgment or order appealed from shall be affirmed."35 Commissioner Sarmiento opined that an election protest case is originally commenced in the Commission En Banc and should therefore be dismissed if the majority of four votes is not obtained. Adverting to Section 2(2), Article IX(C) of the Constitution, he ratiocinated as follows: SECTION 2. The Commission on Elections shall exercise the following powers and functions:

xxxx (2) Exercise exclusive original jurisdiction over all contests relating to the elections, returns, and qualifications of all elective regional, provincial, and city officials, and appellate jurisdiction over all contests involving elective municipal officials decided by trial courts of general jurisdiction, or involving elective barangay officials decided by trial courts of limited jurisdiction. xxxx In the case at bar, considering that the contested position is provincial governor, undoubtedly, exclusive original jurisdiction lies with the Commission on Elections. Correlatively, the protest should be and, indeed, was filed before the Commission at the first instance. It goes without saying therefore that the present case falls under the category originally commenced in the Commission. Furthermore, no way by any stretch of imagination can this controversy be considered as an appealed case. Yes, it is true that the instant Motion for Reconsideration assails the Resolution of the Second Division. But this does not mean that it is an appeal from the said Second Divisions ruling. Aside from the obvious legal difference between the two reliefs, to construe a Motion for Reconsideration as an appeal would defeat the purpose of the delineation made in Section 6 of Rule 18 of the COMELEC Rules of Procedure with regard to the cases originally commenced and those appealed. Take note that all controversies brought to the Commission, either originally or on appeal with the exception of election offenses, are first heard and decided in the division level. The same is elevated to the Commission en banc when a Motion for Reconsideration has been timely filed. Having duly determined that this case falls under the category originally commenced, it is mandated therefore that the election protest filed by protestant Roberto Pagdanganan be dismissed. 36 Similarly, petitioner, in his Supplement to the Petition with a Most Urgent Reiterating Motion for the Issuance of a Temporary Restraining Order or a Status Quo Order , avers that the election protest should have been dismissed after no majority vote was obtained after rehearing, citing the above discussion of Commissioner Sarmiento in his dissent. I do not agree. The COMELEC Rules should be interpreted in harmony with the Constitution, to give meaning to, and fulfill the purpose of, its framers. The COMELEC is a constitutionally-created body that is primarily an administrative agency, which also possesses quasi-judicial and quasi-legislative functions. Article IX(A) of the 1987 Constitution contains the provisions common to all Constitutional Commissions, and Sections 1 and 7 thereof read: SECTION 1. The Constitutional Commissions, which shall be independent, are the Civil Service Commission,the Commission on Elections, and the Commission on Audit. xxxx SECTION 7. Each Commission shall decide by a majority vote of all its Members any case or matter brought before it within sixty days from the date of its submission for decision or resolution. A case or matter is deemed submitted for decision or resolution upon the filing of the last pleading, brief, or memorandum required by the rules of the Commission or by the Commission itself. Unless otherwise provided by this Constitution or by law, any decision, order, or ruling of each Commission

may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from receipt of a copy thereof. (Emphasis ours.) Specifically, Article IX(C) of the Constitution covers the COMELEC, Section 3 of which provides: SECTION 3. The Commission on Elections may sit En Banc or in two divisions, and shall promulgate its rules of procedure in order to expedite disposition of election cases, including preproclamation controversies. All such election cases shall be heard and decided in division , provided that motions for reconsideration of decisions shall be decided by the Commission En Banc. (Emphases supplied.) It is clear from the above that the framers of the Constitution intended the COMELEC to be an independent body. It appears that a division of the COMELEC is vested with constitutional authority to hear and decide election cases subject to the filing of a motion for reconsideration with the COMELEC En Banc. Thus, before a case is elevated to the COMELEC En Banc, there exists a decision of a division of the COMELEC, which it has rendered in accordance with its constitutionally vested jurisdiction to hear and decide election cases. Furthermore, under the COMELEC Rules, a COMELEC division can validly decide election cases upon the concurrence of at least two Members. Rule 3, Section 5 provides: SECTION 5. Quorum Votes Required. (a) When sitting En Banc, four (4) members of the Commission shall constitute a quorum for the purpose of transacting business. The Concurrence of a majority of the Members of the Commission shall be necessary for the pronouncement of a decision or resolution. (b) When sitting in Division, two (2) Members of a Division shall constitute a quorum to transact business. The concurrence of at least two (2) Members of a Division shall be necessary to reach a decision, resolution, order or ruling. If this required number is not obtained, the case shall be automatically elevated to the Commission En Banc for decision or resolution. (c) Any motion to reconsider a decision, resolution, or order of ruling of a Division shall be resolved by the Commission En Banc except motions on interlocutory orders of the division which shall be resolved by the division which issued the order. It appears that this Rule contemplates two distinct situations when a case originally heard before a Division reaches the COMELEC En Banc. Under paragraph (b), when the required number of two (2) Members is not obtained in the Division, the case shall be automatically elevated to the COMELEC En Banc, and in that situation, what is before the latter is the original election protest. On the other hand, under paragraph (c), when the required number is in fact obtained and a decision, resolution, order, or ruling is duly reached by the Division, the motion for reconsideration of such decision, resolution, order, or ruling shall be resolved by the COMELEC En Banc, and NOT the original election protest. Applying Section 6, Rule 18, quoted above, the effect of the lack of the necessary majority of four (4) votes in the COMELEC En Banc, which results in the inability of the COMELEC En Banc to reach a decision either to grant or deny the protest or a motion for reconsideration, is as follows: (i) the original election protest is dismissed, in cases falling under paragraph (b); while (ii) the decision of

the division sought to be reconsidered must be deemed affirmed, in cases falling under paragraph (c). Furthermore, even if we consider the proceeding before the En Banc as a continuation of the election protest heard and decided by the division, the motion for reconsideration will be but an incident of the original election protest. Utilizing the provisions of the COMELEC Rules (Sec. 6, Rule 18) cited by Commissioner Sarmiento, the Motion for Reconsideration, not being an appeal but only an incidental motion, should be denied. To construe Section 6, Rule 18 as providing for the dismissal of the original action that was decided upon by a division, as suggested by petitioner as well as Commissioner Sarmiento, would make the rule objectionable on constitutional grounds because, as discussed above, the Constitution gives the COMELEC divisions the jurisdiction to hear and decide election cases; and the COMELEC En Banc the authority to hear and resolve motions for reconsideration. To adopt petitioners as well as Commissioner Sarmientos interpretation of the COMELEC Rules would render nugatory said Constitutional mandate vesting the said jurisdiction on a division of the COMELEC. In other words, the COMELEC Rules as so interpreted would be vulnerable to objection on the ground of unconstitutionality. Therefore, construing Section 6, Rule 18 in relation to Section 5(b) and (c) of the same COMELEC Rules, in harmony with the pertinent provisions of the Constitution, the rule providing for dismissal of the original protest action upon failure to reach the necessary majority before the COMELEC En Banc should only apply in a case where there was NO decision reached by the Division, because in such situation, the COMELEC En Banc would be acting not on the motion for reconsideration but on the original election protest. But if the COMELEC En Banc acts on a motion for reconsideration of a decision or resolution of a Division, then the failure to reach the necessary majority of four should result to the DENIAL of the motion for reconsideration. Otherwise, the motion for reconsideration would be accorded greater weight than the decision rendered by the Division, which was arrived at in the exercise of its constitutionally vested jurisdiction over election protests. As it stands, when the subject election protest was elevated through a Motion for Reconsideration to the COMELEC En Banc, the decision of all three Members of the Second Division could have only been set aside by the majority of ALL Members of the COMELEC En Banc, meaning four out of seven votes. I agree with petitioner as well as Commissioner Sarmiento that under the Rules and Estrella v. COMELEC,37 the necessary majority wasnot reached in order to decide on the Motion for Reconsideration. However, since no decision was reached by the COMELEC En Banc on the Motion for Reconsideration, what remains is the decision of the Second Division, which was validly rendered in consonance with the provisions of the Constitution and the COMELEC Rules. The protestant, who was proclaimed the winner and who already took his oath subsequent to such proclamation, cannot be removed by protestees failure to obtain the necessary votes from the COMELEC En Banc to sustain his Motion for Reconsideration. As regards petitioners averment that the questioned Resolution dated February 8, 2010, as well as the Resolution dated December 1, 2009 of the COMELEC Second Division, was issued when the original ballots subject of the election protest were still in the custody of the SET, I see no reason to take this matter up again, as this Court had already passed upon this with finality in G.R. No. 188308.38 I quote relevant portions of the Courts Decision in said case, which is clear and requires no further explanation: Allegedly alarmed by information on COMELEC action on the provincial election contest within the SET premises without notice to him and without his participation, the petitioner's counsel wrote the

SET Secretary, Atty. Irene Guevarra, a letter dated June 10, 2009 to confirm the veracity of the reported conduct of proceedings. The SET Secretary responded on June 17, 2009 as follows: . . . please be informed that the conduct of proceedings in COMELEC EPC No. 200744 (Pagdanganan vs.Mendoza) within the Tribunal Premises was authorized by then Acting Chairman of the Tribunal, Justice Antonio T. Carpio, upon formal request of the Office of Commissioner Lucenito N. Tagle. ED Basis of such grant is Section 3, Comelec Resolution No. 2812 dated 17 October 1995, stating that "(t)he Tribunals, the Commission and the Courts shall coordinate and make arrangement with each other so as not to delay or interrupt the revision of ballots being conducted. The synchronization of revision of ballots shall be such that the expeditious disposition of the respective protest case shall be the primary concern". While the said provision speaks only of revision, it has been the practice of the Tribunal to allow the conduct of other proceedings in local election protest cases within its premises as may be requested. x x x. xxxx The petition is anchored on the alleged conduct of proceedings in the election protest following the completed revision of ballots at the SET premises without notice to and without the participation of the petitioner. Significantly, "the conduct of proceedings" is confirmed by the SET Secretary in the letter we quoted above. As the issues raised show the petitioner's focus is not really on the COMELEC Orders denying the suspension of proceedings when the ballot boxes and other election materials pertinent to the election contest were transferred to the SET; the focus is on what the COMELEC did after to the issuance of the Resolutions . We read the petition in this context as these COMELEC Orders are now unassailable as the period to challenge them has long passed. xxxx To conclude, the rights to notice and to be heard are not material considerations in the COMELEC's handling of the Bulacan provincial election contest after the transfer of the ballot boxes to the SET; no proceedings at the instance of one party or of COMELEC has been conducted at the SET that would require notice and hearing because of the possibility of prejudice to the other party. The COMELEC is under no legal obligation to notify either party of the steps it is taking in the course of deliberating on the merits of the provincial election contest. In the context of our standard of review for the petition, we see no grave abuse of discretion amounting to lack or excess of jurisdiction committed by the COMELEC in its deliberation on the Bulacan election contest and the appreciation of ballots this deliberation entailed. xxxx On the basis of the standards set by Section 4 of the COMELEC Rules of Procedure, and of the Constitution itself in the handling of election cases, we rule that the COMELEC action is a valid exercise of discretion as it is a suitable and reasonable process within the exercise of its jurisdiction over provincial election contests, aimed at expediting the disposition of this case, and with no adverse, prejudicial or discriminatory effects on the parties to the contest that would render the rule unreasonable. 4. WHETHER COMELEC GRAVELY ABUSED ITS DISCRETION TANTAMOUNT TO LACK OF OR IN EXCESS OF JURISDICTION WHEN IT FAILED TO CREDIT THE CLAIMS OF THE PETITIONER

I register my dissent to the ponencias finding that there was grave abuse of discretion on the part of the COMELEC En Banc. Based on petitioners contentions, the following are the sub-issues to be resolved: 4.1 WHETHER COMELEC GRAVELY ABUSED ITS DISCRETION TANTAMOUNT TO LACK OF OR IN EXCESS OF JURISDICTION WHEN IT INVALIDATED 9,160 BALLOTS OF THE PETITIONER AS WRITTEN BY ONE PERSON IN PAIRS OR IN GROUP; and 4.2 WHETHER COMELEC GRAVELY ABUSED ITS DISCRETION TANTAMOUNT TO LACK OF OR IN EXCESS OF JURISDICTION WHEN IT INVALIDATED THOUSANDS OF VALID BALLOTS OF THE PETITIONER AS SPURIOUS, WRITTEN BY TWO OR MORE PERSONS AND AS MARKED BALLOTS WITH NO FACTUAL AND LEGAL BASIS. The numerous allegations of petitioner under these sub-issues go into the manner of appreciation of ballots conducted by the COMELEC, and are factual in nature, requiring a thorough physical examination of the original ballots if a proper review is to be made. As this Court has have held in Balingit v. Commission on Elections39: The appreciation of the contested ballots and election documents involves a question of fact best left to the determination of the COMELEC, a specialized agency tasked with the supervision of elections all over the country, as it is the constitutional commission vested with the exclusive original jurisdiction over election contests involving regional, provincial and city officials, as well as appellate jurisdiction over election protests involving elective municipal and barangay officials. In the absence of grave abuse of discretion or any jurisdictional infirmity or error of law, the factual findings, conclusions, rulings, and decisions rendered by the said Commission on matters falling within its competence shall not be interfered with by this Court. (Emphases supplied.) Even if the Court were to entertain petitioners assertions regarding the alleged erroneous invalidation by the COMELEC Second Division of petitioners 9,160 ballots on the ground that they were written by one person in pairs or in a group on the basis of photocopies of said ballots submitted by petitioner as Annexes "II"- "II-3000" to the instant petition, a meticulous examination of the said copies reveals that the COMELEC Second Division was correct in declaring them invalid on the aforesaid ground. The ponencia holds that the COMELEC En Banc gravely abused its discretion in justifying the invalidation of 9,160 ballots in the assailed December 1, 2009 COMELEC Second Division Resolution by mere generalizations bereft of specific details, in contravention of Rule 14, Section 1(d) of the new Rules of Procedure in Election Contests Before the Courts Involving Elective Municipal and Barangay Officials,40 which petitioner claims is applicable by analogy. However, I find that this rule cited by petitioner is inapplicable to the case at bar, as what is involved here is the appreciation of ballots in an election contest involving provincial officials. It is not difficult to understand that the said rule cannot be applied to provincial election contests, owing to the large number of ballots usually involved that would result in an extremely voluminous and unwieldy Resolution containing very specific details on why each and every contested ballot is deemed as written by one person in pairs or in a group. Conversely, petitioner did not present to this Court specific and detailed allegations for each and every ballot which he argues should not have been declared invalid for having been written by one.

After meticulously examining Annexes "JJ"-"JJ-577," which are uncertified photocopies of ballots that petitioner alleges were erroneously invalidated as marked ballots, it appears that only 510 of these ballots may have been mistakenly invalidated as marked. Nevertheless, I cannot attribute grave abuse of discretion on the part of the COMELEC Second Division on this point on account of the complicated rules on what constitutes a mark on a ballot that would render it invalid. Besides, the aforesaid number does not suffice to overturn the results of the final count of the ballots. Regarding petitioners contention that the COMELEC Second Division erroneously invalidated ballots in his favor as spurious, made erroneous computations, and did not take into account the fact that illiterate voters requiring voting assistance actually voted in the precincts in which COMELEC found ballots as written by one, our assessment of such generalized claims would require the appreciation of election documents, i.e., original ballots, Minutes of Voting, etc., which neither party submitted to the Court. Absent the presentation of such vital documents, petitioner cannot expect this Court to uphold his bare assertions. In determining whether the COMELEC en banc acted with grave abuse of discretion in this case as asserted by petitioner, the standard used by the Court in Mendoza v. Commission on Elections41 is as follows: Thus, our standard of review is "grave abuse of discretion", a term that defies exact definition, but generally refers to "capricious or whimsical exercise of judgment as is equivalent to lack of jurisdiction. The abuse of discretion must be patent and gross as to amount to an evasion of positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reason of passion and hostility". Mere abuse of discretion is not enough; the abuse must be grave to merit our positive action. I maintain the presumption that the COMELEC regularly performed its official duties in relation to the revision of ballots in this election case, absent a clear showing that it acted in an arbitrary, whimsical, capricious, or despotic manner. Records show that the COMELEC ordered the respective Election Officers and City/Municipal Treasurers of the various cities and municipalities of Bulacan to undertake all the necessary security measures to preserve and secure the ballot boxes and their contents.42 In addition, the COMELEC granted the requests of both petitioner and respondent Pagdanganan for the designation of their respective security personnel in the storage facility where the ballot boxes were kept.43 Its findings that some ballots were written by one or by two or more persons, or marked, or spurious were supported by laws and jurisprudence regarding the appreciation of ballots.44 Time and again, it has been held that this Court is not a trier of facts. To conclude, I quote from Juan v. Commission on Elections,45 wherein the Court said: The Court's jurisdiction to review decisions and orders of the COMELEC on this matter operates only upon a showing of grave abuse of discretion on the part of the COMELEC. Verily, only where grave abuse of discretion is clearly shown shall the Court interfere with the COMELEC's judgment. x x x The office of a petition for certiorari is not to correct simple errors of judgment; any resort to the said petition under Rule 64 in relation to Rule 65 of the 1997 Rules of Civil Procedure is limited to the resolution of jurisdictional issues. Thus, it is imperative for the petitioner to show caprice and arbitrariness on the part of the COMELEC whose exercise of discretion is being assailed. Proof of such grave abuse of discretion is found wanting in this case.

The COMELEC'S conclusion on a matter decided within its competence is entitled to utmost respect. It is not sufficient to allege that the COMELEC gravely abused its discretion . Such allegation should also be justified. In this case, petitioner failed to justify his assertion of grave abuse of discretion against the COMELEC. x x x Moreover, the COMELEC's proceedings were conducted in accordance with the prevailing laws and regulations. WHEREFORE, premises considered, I vote to dismiss the instant Petition for Certiorari. TERESITA J. LEONARDO-DE CASTRO Associate Justice

Footnotes
1

Rollo, pp. 197-207. Id. at 947-1025. Id. at 1026-1034. Id. at 1117-1118. Id. at 1135-1155. Id. at 1156-1160. Mendoza v. Commission on Elections, G.R. No. 188308, October 15, 2009. Rollo, pp. 221-931. Id. at 930. Id. at 1408-1418. Id. at 1239-1390. Id. at 1219-1238. Id. at 207. Id. at 208-217. Id. at 206. Id. at 5245. Id. at 5304-5308.

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Id. at 5313-5315. Id. at 5316. Id. at 5317-5321. Id. at 5322-5326. Id. at 5288-5303. G.R. No. 190156, February 12, 2010. Rollo, pp. 16-17. Id. at 5189 and 5224. Id. at 5264-5273. G.R. No. 164439, January 23, 2006, 479 SCRA 487, 493-494. 398 Phil. 257, 282 (2000). Rollo, pp. 16-17. Emphasis added. Id. at 218. Id. at 219-220. Id. Id. at 5304-5308. Id. at 5306-5307. Id. at 5310. Id. at 5310-5311. G.R. No. 160465, May 27, 2004, 429 SCRA 789, 792-793. In Estrella we held: The provision of the Constitution is clear that it should be the majority vote of all its members and not only those who participated and took part in the deliberations. Under the rules of statutory construction, it is to be assumed that the words in which constitutional provisions are couched express the objective sought to be attained. Since the above-quoted constitutional provision states "all of its members," without any qualification, it should be interpreted as such. xxxx

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For the foregoing reasons then, this Court hereby abandons the doctrine laid down in Cua and holds that the COMELEC En Banc shall decide a case or matter brought before it by a majority vote of "all its members," and NOT majority of the members who deliberated and voted thereon .
38

Mendoza v. Commission on Elections,supra note 7. G.R. No. 170300, February 9, 2007, 515 SCRA 404, 410.

39

"(d) On Pair or Group of Ballots Written by One or Individual Ballots Written by Two When ballots are invalidated on the ground of written by one person, the court must clearly and distinctly specify why the pair or group of ballots has been written by only one person. The specific strokes, figures or letter indicating that the ballots have been written by one person must be specified. A simple ruling that a pair or group of ballots has been written would not suffice. The same is true when ballots are excluded on the ground of having been written by two persons. The court must likewise take into consideration the entries of the Minutes of Voting and Counting relative to illiterate or disabled voters, if any, who cast their votes through assistors, in determining the validity of the ballots found to be written by one person, whether the ballots are in pairs or in groups"
40 41

Supra note 7. Rollo, p. 238. Id. at 199. Id. at 200. G.R. No. 166639, April 24, 2007, 522 SCRA 119, 128-129.

42

43

44

45

The Lawphil Project - Arellano Law Foundation

DISSENTING OPINION ABAD, J.: Challenged in this Petition for Certiorari is the Resolution dated February 8, 2010 of the Commission on Elections (COMELEC) in EPC 2007-44 entitled Roberto M. Pagdanganan v. Joselito R. Mendoza. Brief Antecedents Petitioner Joselito R. Mendoza was proclaimed winner in the May 14, 2007 gubernatorial race in the Province of Bulacan. Respondent Roberto M. Pagdanganan who opposed him filed an election protest with the COMELEC questioning the election results in all the 5,066 precincts in the province due to massive electoral fraud that Mendoza allegedly committed.

On December 1, 2009 the COMELEC Second Division decided the election protest and proclaimed Pagdanganan as the duly elected Governor of Bulacan. Mendoza opposed Pagdanganans motion for execution of the decision before the Second Division and filed a motion for reconsideration of that decision with the COMELEC En Banc. On February 8, 2010 the COMELEC En Banc denied Mendozas motion for reconsideration. Reacting to it, he filed an urgent motion to recall the February 8 resolution on the ground, among others, that the En Banc issued such resolution (a) without the concurrence of the majority of its members and (b) without conducting a rehearing under Section 6, Rule 18 of the COMELEC rules of procedure. Only three Commissioners voted to deny his motion for reconsideration. A commissioner dissented while three others took no part. On February 10, 2010 the COMELEC En Banc issued an Order for the rehearing of the motion for reconsideration on February 15, 2010. Meanwhile, on February 12 Mendoza filed with this Court the present petition, raising the same grounds which he cited in the urgent motion to recall that he earlier filed with the COMELEC En Banc Following its February 15 rehearing, the members of the COMELEC En Banc maintained their votes. On March 4, 2010 the En Banc issued an order directing the immediate execution of the Second Divisions decision. This prompted Mendoza to file a supplement to his petition before this Court, bringing up the recent developments in the case. Issue Subject of Concurring Opinion I join the dissent of Justice Teresita J. Leonardo-De Castro and in addition would like to add my thoughts on a key issue in this case, namely: Whether or not the failure of the COMELEC En Banc to muster the majority vote required for denying petitioner Mendozas motion for reconsideration would effectively result in the abandonment or reversal of the Second Divisions decision against him. Discussion The dissenting opinion of Justice Teresita J. Leonardo-De Castro holds that, since the majority votes of four Commissioners in the COMELEC En Banc needed for granting Mendozas motion for reconsideration of the decision of the Second Division could not be had, the Divisions decision should be deemed affirmed. But, adopting petitioner Mendozas position, the majority opinion penned by Justice Perezs submits that the result of a failure of vote in the En Banc should be to set aside the Second Divisions decision and dismiss Pagdanganans election protest. Quite frankly, this view is supported by the literal application of Section 6, Rule 18 of the COMELEC Rules of Procedure which reads: Sec. 6. Procedure if Opinion is Equally Divided. - When the Commission en banc is equally divided in opinion, or the necessary majority cannot be had, the case shall be reheard, and if on rehearing no decision is reached, the action or proceeding shall be dismissed if originally commenced in the Commission; in appealed cases, the judgment or order appealed from shall stand affirmed; and in all incidental matters, the petition or motion shall be denied. Here, Pagdanganan filed his election protest, an original action, directly with the COMELEC. The Second Division to which the case was raffled heard the parties and their evidence and rendered a

decision in Pagdanganans favor. On Mendozas motion for reconsideration filed with the En Banc, the latter voted twice with the same result: three votes for denying the motion for reconsideration, one dissenting vote for granting it, and three abstentions. The reasoning is that, since the necessary majority of four votes cannot be had, the election protest originally commenced in the COMELEC should be dismissed. If the issue were to be decided based solely on Section 6, Rule 18 of the COMELEC rules of procedure, Justice Perezs dissent could hardly be debatable. But this is not the case. The COMELEC rules are inferior to and cannot modify what the Constitution prescribes. Thus: One. Section 3, Article IX-C, of the 1987 Constitution empowers every COMELEC Division to decide election cases for the COMELEC as a body, not to act as commissioners with mere recommendatory powers. Section 3 reads: Sec. 3. The Commission on Elections may sit en banc or in two divisions, and shall promulgate its rules of procedure in order to expedite disposition of election cases, including pre-proclamation controversies. All such election cases shall be heard and decided in division, provided that motions for reconside-ration of decisions shall be decided by the Commission en banc. (Underscoring supplied) Actually, although the COMELEC "may sit en banc or in two divisions," the COMELEC en banc has no power to decide election cases. "All such election cases," says Section 3 above, "shall be heard and decided in division." The majority opinions theory that the Divisions decisions in original actions are not decisions if, on motion for reconsideration, the required vote of the En Banc cannot be had, contravenes Section 3. Nothing in the provisions of the Constitution implies a proposition that the decision-making process it prescribed for the COMELEC is integrated in that the decision of the Division is a half-decision in original election cases and needs to be approved by the En Banc. Two. The COMELEC cannot pass a rule that, when the En Banc fails to muster the majority vote required for denying the losing partys motion for reconsideration, the decision of the Division shall be deemed vacated or reversed. Such rule will alter the scope of the power of the En Banc. The latters power with respect to all kinds of election cases is limited to deciding motions for reconsideration. Thus, the pertinent portion of section 3, Article IX-C, of the 1987 Constitution, provides: Sec. 3. The Commission on Elections may sit en banc or in two divisions, and shall promulgate its rules of procedure in order to expedite disposition of election cases, including pre-proclamation controversies. All such election cases shall be heard and decided in division, provided that motions for reconside-ration of decisions shall be decided by the Commission en banc. (Underscoring supplied) The reconsideration of a decision implies reexamination, and possibly a different decision by the entity which initially decided it.1 Since the En Banc needs four votes to reconsider and set aside a Divisions decision, its failure to muster such votes means that it is unable to exercise its power to decide the motion for reconsideration before it. This also means that it cannot grant the reconsideration asked of it by the losing party. Correct? Consequently, a COMELEC-generated rule which says that such failure to grant reconsideration is the equivalent of actually granting the reconsideration is absurd. It also contravenes the Constitution.

Three. The Constitution does not make a distinction between election cases brought to the COMELEC by appeal and those originally filed with it. The same Section 3 provides that "all such election cases shall be heard and decided in division, provided that motions for reconsideration of decisions shall be decided by the Commission en banc." There cannot be one way of disposing of motions for reconsideration in original cases and another way of disposing of motions for reconsideration in appealed cases. The distinction made by Section 6, Rule 18, of the COMELEC rules is unwarranted. As stated above, it is to the Divisions that the Constitution gave the power to decide all election cases, not to the En Banc. It can be granted that the procedure that the Division may follow in hearing and deciding appealed cases might differ from the procedure it will follow in hearing and deciding original cases. But is there a significant difference between these two kinds of cases that will justify a divergence in results when, on motions for reconsideration, the En Banc is unable to muster the required vote for denying such motions? There is none. Indeed, the Supreme Court hears and decides both appealed and original cases but it has never crossed its mind to decree that, in original cases filed with it as distinguished from appealed cases, a failure to muster the required vote for acting on a motion for reconsideration shall result in the reversal of its decision. Such a rule would be an outrage to the principle of fairness and to the Constitutional guarantee of due process. The resolution of the COMELEC en banc being in harmony with both constitutional and statutory provisions, I vote to deny the petition. ROBERTO A. ABAD Associate Justice

Footnotes
1

Blacks Law Dictionary, Sixth Edition, p. 1272.

TRADE AND INVESTMENT DEVELOPMENT CORPORATION OF THE PHILIPPINES, Petitioner, -versusCIVIL SERVICE

COMMISSION, Respondent. G.R. No. 182249 Present: SERENO, C.J., CARPIO, VELASCO, JR., LEONARDO-DE CASTRO, BRION, PERALTA, * BERSAMIN, DEL CASTILLO, ABAD, VILLARAMA, JR., PEREZ, MENDOZA, REYES, PERLAS-BERNABE, and LEONEN,JJ. Promulgated: MARCH 05, 2013 X------------------------------------------------------------------------------------ ----X DECISION BRION,J.: We resolve the petition for review on certiorari1 of Trade and

Investment Development Corporation of the Philippines (TJDCORP) seeking the reversal of the decision2 dated September 28, 2007 and the resolution3 dated March 17, 2008 of the Court of Appeals (CA) in CA-G.R. No part. Rollo, pp. 29-60; under Rule 45 of the Rules of Court. Penned by Associate Justice Normandie B. Pizarro, and concurred in by Associate Justices Edgardo P. Cruz and Fernanda Lampas Peralta; id. at 10-18. 3 Id. at 7-8. Decision G.R. No. 182249 2 SP. No. 81058. The assailed CA rulings affirmed the resolutions,4 dated January 31, 2003 and October 7, 2003, of the Civil Service Commission (CSC), invalidating Arsenio de Guzmans appointment as Financial Management Specialist IV in TIDCORP. The CA subsequently denied the motion for reconsideration that followed. Factual Antecedents On August 30, 2001, De Guzman was appointed on a permanent status as Financial Management Specialist IV of TIDCORP, a governmentowned and controlled corporation (GOCC) created pursuant to Presidential Decree No. 1080. His appointment was included in TIDCORPs Report on Personnel Actions (ROPA) for August 2001, which was submitted to the CSC Department of Budget and Management (DBM) Field Office.5 In a letter6 dated September 28, 2001, Director Leticia M. Bugtong disallowed De Guzmans appointment because the position of Financial Management Specialist IV was not included in the DBMs Index of

Occupational Service. TIDCORPs Executive Vice President Jane U. Tambanillo appealed7 the invalidation of De Guzmans appointment to Director IV Agnes Padilla of the CSC-National Capital Region (NCR). According to Tambanillo, Republic Act No. (RA) 8494, which amended TIDCORPs charter, empowers its Board of Directors to create its own organizational structure and staffing pattern, and to approve its own compensation and position classification system and qualification standards. Specifically, Section 7 of RA 8494 provides: Section 7. The Board of Directors shall provide for an organizational structure and staffing pattern for officers and employees of the Trade and Investment Development Corporation of the Philippines (TIDCORP) and upon recommendation of its President, appoint and fix their remuneration, emoluments and fringe benefits: Provided, That the Board shall have exclusive and final authority to appoint, promote, transfer, assign and re-assign personnel of the TIDCORP, any provision of existing law to the contrary notwithstanding. All positions in TIDCORP shall be governed by a compensation and position classification system and qualification standards approved by TIDCORP's Board of Directors based on a comprehensive job analysis 4 Id. at 108-114 and 120-122, respectively. 5 Id. at 75. 6

Id. at 91. 7 Id. at 92-95. Decision G.R. No. 182249 3 and audit of actual duties and responsibilities. The compensation plan shall be comparable with the prevailing compensation plans in the private sector and shall be subject to periodic review by the Board no more than once every four (4) years without prejudice to yearly merit reviews or increases based on productivity and profitability. TIDCORP shall be exempt from existing laws, rules and regulations on compensation, position classification and qualification standards. It shall, however, endeavor to make the system to conform as closely as possible to the principles and modes provided in Republic Act No. 6758. On the basis of Section 7 of RA 8494, Tambanillo argued that TIDCORP is authorized to adopt an organizational structure different from that set and prescribed by the CSC. Section 7 exempts TIDCORP from existing laws on compensation, position classification and qualification standards, and is thus not bound by the DBMs Index of Occupational Service. Pursuant to this authority, TIDCORPs Board of Directors issued Resolution No. 1185, s. 1998 approving the corporations re-organizational plan, under which De Guzman was appointed Financial Management Specialist IV. De Guzmans appointment was valid because the plan providing for his position followed the letter of the law. Tambanillo also noted that prior to De Guzmans appointment as Financial Management Specialist IV, the position had earlier been occupied by Ma. Loreto H. Mayor whose appointment was duly approved by Director

Bugtong. Thus, Director Bugtongs invalidation of De Guzmans appointment is inconsistent with her earlier approval of Mayors appointment to the same position. The CSC-NCRs Ruling Director Padilla denied Tambanillos appeal because De Guzmans appointment failed to comply with Section 1, Rule III of CSC Memorandum Circular No. 40, s. 1998, which requires that the position title of an appointment submitted to the CSC must conform with the approved Position Allocation List and must be found in the Index of Occupational Service. Since the position of Financial Management Specialist IV is not included in the Index of Occupational Service, then De Guzmans appointment to this position must be invalid.8 Director Padilla pointed out that the CSC had already decided upon an issue similar to De Guzmans case in CSC Resolution No. 011495 (Geronimo, Rolando S.C., Macapagal, Vivencio M. Tumangan, Panser E., Villar, Victor G., Ong, Elizabeth P., Re: Invalidated Appointments; Appeal) 8 Id. at 96-98. Decision G.R. No. 182249 4 where it invalidated the appointments of several Development Bank of the Philippines (DBP) employees because their position titles did not conform with the Position Allocation List and with the Index of Occupational Service. Like TIDCORP, the DBPs charter exempts the DBP from existing laws, rules, and regulations on compensation, position classification and qualification standards. It also has a similar duty to endeavor to make its system conform as closely as possible to the principles under [the]

Compensation and Position Classification Act of 1989 (Republic Act No. 6758, as amended)[.]9 Lastly, Padilla stressed that the 1987 Administrative Code empowers10 the CSC to formulate policies and regulations for the administration, maintenance and implementation of position, classification and compensation. TIDCORPs appeal to the CSC-CO In response to the CSC-NCRs ruling, TIDCORPs President and CEO Joel C. Valdes sent CSC Chairperson Karina Constantino-David a letter11 appealing Director Padillas decision to the CSC-Central Office (CO). Valdes reiterated TIDCORPs argument that RA 8494 authorized its Board of Directors to determine its own organizational structure and staffing pattern, and exempted TIDCORP from all existing laws on compensation, position classification and qualification standards. Citing Javellana v. The Executive Secretary, et al., 12 Valdes asserted that the wisdom of Congress in granting TIDCORP this authority and exemption is a political question that cannot be the subject of judicial review. Given TIDCORPs functions as the governments export credit agency, its Board of Directors has been provided flexibility in administering its personnel so that it can hire qualified employees from the private sector, such as banks and other financial institutions. In addition, prior actions of the CSC show that it recognized TIDCORPs exemption from all laws regarding compensation, position classification and qualification standards of its employees. The CSC has

approved prior appointments of TIDCORPs officers under its July 1, 1998 re-organization plan. It also approved Mayors previous appointment as 9 Id. at 98. 10 Paragraph 4, Section 12, Chapter III, Subtitle A, Title I, Book V of the Administrative Code of 1987 provides: The Commission shall have the following powers and functions: x x x (4) Formulate policies and regulations for the administration, maintenance and implementation of position classification and compensation and set standards for the establishment, allocation and reallocation of pay scales, classes and positions[.] 11 Rollo, pp. 100-107. 12 151-A Phil. 35 (1973). Decision G.R. No. 182249 5 Financial Management Specialist IV. Further, a memorandum dated October 29, 1998 issued by the CSC-NCR noted that pursuant to Sec. 7 of RA 8494[,] TIDCORP is exempt from existing laws, rules and regulations on compensation, position classification and qualification standards.13 The CSC-COs ruling In its Resolution No. 030144,14 the CSC-CO affirmed the CSC-NCRs decision that De Guzmans appointment should have complied with CSC Memorandum Circular No. 40, s. 1998, as amended by CSC Memorandum Circular No. 15, s. 1999. Rule III, Section 1(c) is explicit in requiring that the position title indicated in the appointment should conform with the Position Allocation List and found in the Index of Occupational Service. Otherwise, the appointment shall be disapproved. In disallowing De Guzmans appointment, the CSC-CO held that Director Bugtong was simply

following the letter of the law. According to the CSC-CO, TIDCORP misconstrued the provisions of Section 7 of RA 8494 in its attempt to bypass the requirements of CSC Memorandum Circular No. 40, s. 1998. While RA 8494 gave TIDCORP staffing prerogatives, it would still have to comply with civil service rules because Section 7 did not expressly exempt TIDCORP from civil service laws. The CSC-CO also supported the CSC-NCRs invocation of CSC Resolution No. 011495. Both the charters of the DBP and TIDCORP have similar provisions in the recruitment and administration of their human resources. Thus, the ruling in CSC Resolution No. 011495 has been correctly applied in TIDCORPs appeal. Lastly, the CSC-CO noted that the government is not bound by its public officers erroneous application and enforcement of the law. Granting that the CSC-NCR had erroneously approved an appointment to the same position as De Guzmans appointment, the CSC is not estopped from correcting its officers past mistakes. TIDCORP moved to reconsider15 the CSC-COs decision, but this motion was denied,16 prompting TIDCORP to file a Rule 65 petition for 13 Rollo, p. 109. 14 Id. at 108-114. 15 Id. at 115-119. 16 Resolution No. 031037 dated October 7, 2003; id. at 120-122. Decision G.R. No. 182249 6 certiorari17 with the CA. The petition asserted that the CSC-CO committed grave abuse of discretion in issuing Resolution No. 030144 and Resolution

No. 031037. The Appellate Courts Ruling The CA denied18 TIDCORPs petition and upheld the ruling of the CSC-CO in Resolution No. 030144 and Resolution No. 031037. The CA noted that filing a petition for certiorari was an improper recourse; TIDCORP should have instead filed a petition for review under Section 1, Rule 43 of the Rules of Court. The CA, however, brushed aside the procedural defect, ruling that the assailed resolutions should still stand as they are consistent with law and jurisprudence. Citing Central Bank of the Philippines v. Civil Service Commission, 19 the CA stood by the CSC-COs ruling that it has authority to approve and review De Guzmans appointment. The CSC has the power to ascertain whether the appointing authority complied with the requirements of the law; otherwise, it may revoke the appointment. As TIDCORP is a governmentowned corporation, it is covered by civil service laws and is therefore bound by the CSCs jurisdiction over all matters pertaining to personnel, including appointments. Further, the CA cited the CSCs mandate under the 1987 Constitution to approve or disapprove appointments and to determine whether an appointee possesses civil service eligibility. As TIDCORPs charter does not expressly or impliedly divest the CSC of administrative authority over personnel concerns at TIDCORP, the latter is still covered by the existing civil service laws on compensation, position classification and qualification standards. Its appointment of De Guzman as Financial Management

Specialist IV should have complied with these rules. The CA thus concluded that the CSC was well-within its authority when it invalidated De Guzmans appointment. It held that an appointees title to the office does not permanently vest until the appointee complies with the legal requirements of his appointment. The requirements include the submission of the appointment to the CSC for the determination of whether the appointee qualifies to the position and whether the procedure for appointment has been properly followed. Until these requirements are 17 Id. at 123-136. 18 Supra note 2. 19 253 Phil. 717 (1989). Decision G.R. No. 182249 7 complied with, his appointment may still be recalled or withdrawn by the appointing authority.20 TIDCORP moved for reconsideration21 but the CA denied the motion in a resolution22 dated March 17, 2008. The Present Petition In its present petition for review on certiorari, 23 TIDCORP argued that the CSCs interpretation of the last sentence of Section 7 of RA 8494 (which mandates it to endeavor to make the system conform as closely as possible with the principles provided in RA 6758) is misplaced. This provision does not bar TIDCORP from adopting a position classification system and qualification standards different from those prescribed by the CSC. TIDCORP asserts that it is not also duty bound to comply with civil service rules on compensation and position classification, as it is exempt

from all these rules. Instead, TIDCORP is only required to furnish the CSC with its compensation and position classification system and qualification standards so that the CSC can be properly guided in processing TIDCORPs appointments, promotion and personnel action. Insisting on its exemption from RA 6758 and CSC Memorandum Circular No. 40, s. 1998, TIDCORP emphasizes that the provisions of RA 6758, which the CSC applied to TIDCORP, is a general law, while TIDCORPs charter, RA 8494, is a special law. In interpreting conflicting provisions of a general law and a special law, the provisions of the two laws should be harmonized to give effect to both. But if these provisions cannot be reconciled, then the special law should prevail because it is a qualification to the general rule. Further, RA 8494 is a later expression of Congress intent as it was enacted nine years after RA 6758 was approved, and should therefore be construed in this light in its relation with the latter. A new statute should be interpreted in connection with those already existing in relation to the same subject matter and all should be made to harmonize and stand together interpretare et concordare legibus est optimus interpretandi. Under these principles, TIDCORP argued that Section 7 of RA 8494, the provision of a special law, should be interpreted as an exemption to RA 20 Tomali v. Civil Service Commission, G.R. No. 110598, December 1, 1994, 238 SCRA 572, 576. 21 Rollo, pp. 221-238. 22 Supra note 3. 23 Supra note 1. Decision G.R. No. 182249 8 6758. Thus, CSC Memorandum Circular No. 40, s. 1998, which was issued

pursuant to RA 6758, should not have been applied to limit TIDCORPs staffing prerogatives. In its comment,24 the CSC noted that CSC Memorandum Circular No. 40, series of 1998, as amended by CSC Memorandum Circular No. 15, s. 1999, was issued in accordance with its authority to prescribe rules and regulations to carry out the provisions of civil service laws and other pertinent laws (Administrative Code), and not pursuant to RA 6758. The CSC maintained that Section 2(1), Article IX-B of the Constitution includes government and controlled corporations as part of the civil service. TIDCORP, a GOCC, is therefore covered by the civil service rules and by the CSC. It should submit its Position Allocation List to the DBM, regardless of its exemption under RA 6758. Lastly, the CSC argued that RA 8494 should not prevail over RA 6758 because the latter also applies to GOCCs like TIDCORP; RA 8494 even makes a reference to RA 6758. Issues The parties arguments, properly joined, present to us the following issues: 1) Whether the Constitution empowers the CSC to prescribe and enforce civil service rules and regulations contrary to laws passed by Congress; 2) Whether the requirement in Section 1(c), Rule III of CSC Memorandum Circular No. 40, s. 1998, as amended by CSC Memorandum Circular No. 15, s. 1999, applies to appointments in TIDCORP; and

3) Whether De Guzmans appointment as Financial Management Specialist IV in TIDCORP is valid. The Courts Ruling We find the petition meritorious. 24 Rollo, pp. 276-286. Decision G.R. No. 182249 9 Directly at issue is the application of Section 1(c), Rule III of CSC Memorandum Circular No. 40, s. 1998, to appointments in TIDCORP. TIDCORP claims that its exemption, embodied in Section 7 of its charter, precludes the application of this requirement. The CSC, on the other hand, maintains its stance that appointments in a GOCC should follow the civil service laws on appointments, regardless of its exemption from the civil service rules on compensation, position classification and qualification standards. While the CSC has authority over personnel actions in GOCCs, the rules it formulates pursuant to this mandate should not contradict or amend the civil service laws it implements. At the outset, we clarify that the CSCs authority over personnel actions in TIDCORP is uncontested. Both parties acknowledge this relationship in the pleadings they filed before the Supreme Court.25 But while TIDCORP asserts that its charter exempts it from rules on compensation, position classification and qualification standards, the CSC argues that this exemption is irrelevant to the denial of De Guzmans

appointment because the CSCs authority over TIDCORPs personnel actions requires it to comply with the CSCs rules on appointments. The parties arguments reveal an apparent clash between TIDCORPs charter, enacted by Congress, and the CSC rules, issued pursuant to the CSCs rule-making power. Does the CSCs constitutional authority over the civil service divest the Legislature of the power to enact laws providing exemptions to civil service rules? We answer in the negative. The CSCs rule-making power, albeit constitutionally granted, is still limited to the implementation and interpretation of the laws it is tasked to enforce. The 1987 Constitution created the CSC as the central personnel agency of the government mandated to establish a career service and 25 In its petition for review on certiorari, TIDCORP admitted that it never raised the issue of the CSCs authority over it, to wit: To begin with, petitioner never raised the issue of the authority of respondent over petitioner. Petitioner agrees that the scope of power of respondent includes the approval/disapproval of appointments to determine if an appointee possesses the required qualifications and Civil Service eligibility. In the same light, the coverage of the Civil Service includes government-owned and controlled corporations with original charter such as petitioner. (Id. at 45-46.) Decision G.R. No. 182249 10 promote morale, efficiency, integrity, responsiveness, progressiveness, and courtesy in the civil service.26 It is a constitutionally created administrative agency that possesses executive, quasi-judicial and quasi-legislative or rulemaking powers. While not explicitly stated, the CSCs rule-making power is subsumed under its designation as the governments central personnel agency in

Section 3, Article IX-B of the 1987 Constitution. The original draft of Section 3 empowered the CSC to promulgate and enforce policies on personnel actions, classify positions, prescribe conditions of employment except as to compensation and other monetary benefits which shall be provided by law. This, however, was deleted during the constitutional commissions deliberations because it was redundant to the CSCs nature as an administrative agency:27 MR. REGALADO. This is more for clarification. The original Section 3 states, among others, the functions of the Civil Service Commission to promulgate and enforce policies on personnel actions. Will Commissioner Aquino kindly indicate to us the corresponding provisions and her proposed amendment which would encompass the powers to promulgate and enforce policies on personnel actions? MS. AQUINO. It is my submission that the same functions are already subsumed under the concept of a central personnel agency. MR. REGALADO. In other words, all those functions enumerated from line 35 on page 2 to line 1 of page 3, inclusive, are understood to be encompassed in the phrase "central personnel agency of the government." MS. AQUINO. Yes, Mr. Presiding Officer, except that on line 40 of page 2 and line 1 of the subsequent page, it was only subjected to a little modification. MR. REGALADO. May we, therefore, make it of record that the phrase ". . . promulgate and enforce policies on personnel actions, classify positions, prescribe conditions of employment except as to compensation and other monetary benefits which shall be provided by law" is understood

to be subsumed under and included in the concept of a central personnel agency. MS. AQUINO. I would have no objection to that.28 26 Section 3, Article IX-B of the 1987 Constitution; and Section 1, Book V of the Administrative Code of 1987. 27 De Jesus v. Civil Service Commission, 508 Phil. 599, 609 (2005), citing Record of Constitutional Commission, Vol. I, RCC No. 30, July 15, 1986, p. 593; see Bernas, The Constitution of the Republic of the Philippines, Vol. II (1st ed., 1988), p. 383. 28 Record of the Constitutional Commission, Vol. I, RCC No. 30, July 15, 1986, pp. 592-593. Decision G.R. No. 182249 11 The 1987 Administrative Code then spelled out the CSCs rulemaking power in concrete terms in Section 12, Book V, Title I-A, which empowered the CSC to implement the civil service law and other pertinent laws, and to promulgate policies, standards and guidelines for the civil service.29 The CSCs rule-making power as a constitutional grant is an aspect of its independence as a constitutional commission. It places the grant of this power outside the reach of Congress, which cannot withdraw the power at any time. As we said in Gallardo v. Tabamo, Jr., 30 a case which upheld the validity of a resolution issued by the Commission on Elections (COMELEC), another constitutional commission: Hence, the present Constitution upgraded to a constitutional status the aforesaid statutory authority to grant the Commission broader and more flexible powers to effectively perform its duties and to insulate it further

from legislative intrusions. Doubtless, if its rule-making power is made to depend on statutes, Congress may withdraw the same at any time. Indeed, the present Constitution envisions a truly independent Commission on Elections committed to ensure free, orderly, honest, peaceful and credible elections, and to serve as the guardian of the people's sacred right of suffrage the citizenry's vital weapon in effecting a peaceful change of government and in achieving and promoting political stability. [citation omitted] But while the grant of the CSCs rule-making power is untouchable by Congress, the laws that the CSC interprets and enforces fall within the prerogative of Congress. As an administrative agency, the CSCs quasilegislative power is subject to the same limitations applicable to other administrative bodies. The rules that the CSC formulates must not override, but must be in harmony with, the law it seeks to apply and implement.31 29 SECTION 12. Powers and Functions.The Commission shall have the following powers and functions: (1) Administer and enforce the constitutional and statutory provisions on the merit system for all levels and ranks in the Civil Service; (2) Prescribe amend and enforce rules and regulations for carrying into effect the provisions of the Civil Service Law and other pertinent laws; (3) Promulgate policies, standards and guidelines for the Civil Service and adopt plans and programs to promote economical, efficient and effective personnel administration in the government; (4) Formulate policies and regulations for the administration, maintenance and implementation of position classification and compensation and set standards for the establishment, allocation and reallocation of pay scales, classes and positions;

30 G.R. No. 104848, January 29, 1993, 218 SCRA 253, 264. 31 Grego v. Commission on Elections, G.R. No. 125955, June 19, 1997, 274 SCRA 481, 498, citing Commissioner of Internal Revenue v. Court of Appeals, 240 SCRA 368 (1995). Decision G.R. No. 182249 12 For example, in Grego v. Commission on Elections, 32 we held that it was improper for the COMELEC, a constitutional body bestowed with rulemaking power by the Constitution, to use the word shall in the rules it formulated, when the law it sought to implement uses the word may. While rules issued by administrative bodies are entitled to great respect, [t]he conclusive effect of administrative construction is not absolute. [T]he function of promulgating rules and regulations may be legitimately exercised only for the purpose of carrying the provisions of the law into effect. x x x [A]dministrative regulations cannot extend the law [nor] amend a legislative enactment; x x x administrative regulations must be in harmony with the provisions of the law[,] and in a conflict between the basic law and an implementing rule or regulation, the former must prevail.33 CSC Memorandum Circular No. 40, s. 1998, and CSC Resolution No. 15, s. 1999, which were issued pursuant to the CSCs rule-making power, involve rules on position classification Two questions logically follow our conclusion on the extent of the CSCs rule-making power. The first is whether Section 1(c), Rule III of CSC Memorandum Circular No. 40, s. 1998, was issued pursuant to the

CSCs rule-making power; the second is whether this provision involves compensation, position classification and/or qualification standards that TIDCORP claims to be exempt from. We answer both questions in the affirmative. We agree with the CSCs position that CSC Memorandum Circular No. 40, s. 1998, and CSC Resolution No. 15, s. 1999, were all issued pursuant to its rule-making power. No less than the introductory clause of CSC Memorandum Circular No. 40, s. 1998, confirms this: Pursuant to Paragraphs 2 and 3, Section 12, Book V of Administrative Code of 1987 otherwise known as Executive Order No. 292, the Civil Service Commission hereby prescribes the following rules to govern the preparation, submission of, and actions to be taken on appointments and other personnel actions.34 32 Supra, at 499. 33 Land Bank of the Philippines v. Court of Appeals, G.R. Nos. 118712 and 118745, October 6, 1995, 249 SCRA 149, 157-158, citing Peralta v. Civil Service Commission, G.R. No. 95832, August 10, 1992, 212 SCRA 425, 432, Toledo v. Civil Service Commission, G.R. Nos. 92646-47, October 4, 1991, 202 SCRA 507, 514, and Shell Philippines, Inc. v. Central Bank of the Philippines, G.R. No. L-51353, June 27, 1988, 162 SCRA 628. 34 CSC Memorandum Circular No. 40, s. 1998. Decision G.R. No. 182249 13 Both these memoranda govern appointments and personnel actions in the civil service. CSC Memorandum Circular No. 40, s. 1998, or the Revised Omnibus Rules on Appointments and Other Personnel Actions,

updated and consolidated the various issuances on appointments and other personnel actions and simplified their processing. This was subsequently amended by CSC Memorandum Circular No. 15, s. 1999. The assailed provisions in those memorandum circulars, however, involve position classification. Section 1(c), Rule III of CSC Memorandum Circular No. 40,35 s. 1998, requires, as a condition sine qua non for the approval of an appointment, that the position title indicated therein conform with the approved Position Allocation List. The position title should also be found in the Index of Occupational Service. According to National Compensation Circular No. 58, the Position Allocation List is a list prepared by the DBM which reflects the allocation of existing positions to the new position titles in accordance with the Index of Occupational Service, Position Titles and Salary Grades issued under National Compensation Circular No. 57.36 Both circulars were published by the DBM pursuant to its mandate from RA 6758 to establish a position classification system in the government.37 Further, the CSC admitted in its comment that RA 6758 was the basis for the issuance of CSC Memorandum Circular No. 40, s. 1998, as amended by CSC Memorandum Circular No. 15, s. 1999. The CSC said: The abovecited Sections 4 and 6 of R.A. No. 6758 are the bases for respondents issuance of CSC Memorandum Circular No. 40, series of 1998, as amended by CSC Memorandum Circular No. 15, series of 1999. To reiterate, the Circulars mandate that appointments should conform [to] 35 RULE III. COMMON REQUIREMENTS FOR REGULAR APPOINTMENTS Section 1. Appointments submitted to the CSC office concerned should meet the requirements

listed hereunder. Non-compliance with such requirements shall be ground for disapproval of said appointments. xxxx (c) Position Title The position title indicated in the appointment shall conform with the approved Position Allocation List and should be found in the Index of Occupational Service (IOS). The salary grade shall always be indicated after the position title. 36 (2) In compliance with the above provision, the Department of Budget and Management has prepared the Position Allocation List (PAL) reflecting the allocation of existing positions to the new position titles in accordance with the Index of Occupational Service, Position Titles and Salary Grades under National Compensation Circular No. 57. 37 Paragraph (1) of National Compensation Circular No. 57 provides: (1) The attached Index of Occupational Service, Position Titles and Salary Grades is hereby issued pursuant to RA 6758 entitled An Act Prescribing a Revised Compensation and Position Classification System in the Government and for other Purposes; while Paragraph (1) of National Compensation Circular No. 58 provides: (1) Section 6 of RA 6758 provides that all positions in the government shall be allocated to their proper position titles and salary grades in accordance with the Index of Occupational Service, Position Titles and Salary Grades prepared by the Department of Budget and Management. Decision G.R. No. 182249 14 the approved Position Allocation List (PAL) and at the same time be listed in the Index of Occupational Service (IOS).38 Section 7 of TIDCORPs charter exempts it from rules involving position classification

To comply with Section 1(c), Rule III of CSC Memorandum Circular No. 40, s. 1998, TIDCORP must conform with the circulars on position classification issued by the DBM. Section 7 of its charter, however, expressly exempts TIDCORP from existing laws on position classification, among others. In its comment, the CSC would want us to disregard TIDCORPs exemption from laws involving position classification because RA 6758 applies to all GOCCs. It also noted that Section 7 of RA 8494, the provision TIDCORP invokes as the source of its exemption, also directs its Board of Directors to endeavor to make its system conform as closely as possible with the principles [and modes provided in] Republic Act No. 6758[.]39 This reference of RA 6758 in Section 7 means that TIDCORP cannot simply disregard RA 6758 but must take its principles into account in providing for its own position classifications. This requirement, to be sure, does not run counter to Section 2(1), Article IX-B of the Constitution which provides that the civil service embraces all branches, subdivisions, instrumentalities, and agencies of the Government, including government-owned or controlled corporations with original charters. The CSC shall still enforce position classifications at TIDCORP, but must do this under the terms that TIDCORP has itself established, based on the principles of RA 6758. To further expound on these points, the CSCs authority over TIDCORP is undisputed. The rules that the CSC formulates should implement and be in harmony with the law it seeks to enforce. In TIDCORPs case, the CSC should also consider TIDCORPs charter in addition to other civil service laws. Having said this, there remains the issue

of how the CSC should apply the civil service law to TIDCORP, given the exemptions provided in the latters charter. Does the wording of Section 7 of RA 8494 command TIDCORP to follow issued requirements pursuant to RA 6758 despite its exemption from laws involving position classification? We answer in the negative. Under the principles of statutory construction, if a statute is clear, plain and free from ambiguity, it must be 38 Rollo, p. 284. 39 Id. at 98. Decision G.R. No. 182249 15 given its literal meaning and applied without attempted interpretation. This plain-meaning rule or verba legis is derived from the maxim index animi sermo est (speech is the index of intention) and rests on the valid presumption that the words employed by the legislature in a statute correctly express its intent and preclude the court from construing it differently. The legislature is presumed to know the meaning of the words, to have used words advisedly, and to have expressed its intent by the use of such words as are found in the statute. Verba legis non est recedendum, or from the words of a statute there should be no departure.40 The phrase to endeavor means to to devote serious and sustained effort and to make an effort to do. It is synonymous with the words to strive, to struggle and to seek.41 The use of to endeavor in the context of Section 7 of RA 8494 means that despite TIDCORPs exemption from laws involving compensation, position classification and qualification standards, it should still strive to conform as closely as possible with the principles and modes provided in RA 6758. The phrase as closely as possible, which qualifies TIDCORPs duty to endeavor to conform, recognizes that the

law allows TIDCORP to deviate from RA 6758, but it should still try to hew closely with its principles and modes. Had the intent of Congress been to require TIDCORP to fully, exactly and strictly comply with RA 6758, it would have so stated in unequivocal terms. Instead, the mandate it gave TIDCORP was to endeavor to conform to the principles and modes of RA 6758, and not to the entirety of this law. These inter-relationships render it clear, as a plain reading of Section 7 of RA 8494 itself would confirm, that TIDCORP is exempt from existing laws on compensation, position classification and qualification standards, including compliance with Section 1(c), Rule III of CSC Memorandum Circular No. 40, s. 1998. De Guzmans appointment as Financial Management Specialist IV is valid With TIDCORP exempt from Section 1(c), Rule III of CSC Memorandum Circular No. 40, s. 1998, there remains the issue of whether De Guzmans appointment as Financial Management Specialist IV is valid. Since Section 1(c), Rule III of CSC Memorandum Circular No. 40, s. 1998, 40 Globe-Mackay Cable and Radio Corporation v. NLRC, G.R. No. 82511, March 3, 1992, 206 SCRA 701, 711, citing Ruben E. Agpalo, Statutory Construction, p. 94 (1990); and Aparri v. CA, et al., 212 Phil. 215, 224-225 (1984). 41 Endeavor Definition, Merriam Webster Dictionary, accessed on February 7, 2013 at http://www.merriam-webster.com/thesaurus/endeavor. Decision 16 G.R. No. 182249 is the only requirement that De Guzman failed to follow, his appointment

actually complied with all the requisites for a valid appointment. The CSC, therefore, should have given due course to De Guzman's appointment. WHEREFORE, all premises considered, we hereby GRANT the petition, and REVERSE and SET ASIDE the decision dated September 28, 2007 and the resolution dated March 17, 2008 of the Court of Appeals in CA-G.R. SP. No. 81058, as well 'as Resolution No. 030144 and Resolution No. 031037 of the Civil Service Commission that the Court of Appeals rulings affirmed. No costs. SO ORDERED.

[A.M. No. RTJ-04-1868. August 13, 2004]

RE: REQUEST OF JUDGE TITO G. GUSTILO THAT THE SECOND 25% GRANT OF THE SPECIAL ALLOWANCE FOR JUDGES BE INCLUDED IN THE COMPUTATION OF HIS RETIREMENT BENEFITS. RESOLUTION
CALLEJO, SR., J.:

In his Letter dated May 26, 2004 addressed to Chief Justice Hilario G. Davide, Jr., Judge Tito G. Gustilo of the Regional Trial Court of Iloilo City, Branch 23, avers that he is due to retire at the age of 70 (compulsory retirement) on September 29, 2004. By then, he would have served the Judiciary for 21 years; 7 years and 11-and-1/2 months of which as Executive Judge of the RTC of Iloilo City. Judge Gustilo requests that, considering his retirement is barely one month from November 2004, the second tranche of the Special Allowance granted to judges under Republic Act No. 9227 be included in the computation of his retirement benefits.
[1]

To recall, Rep. Act No. 9227, which took effect on November 11, 2003, granted additional compensation in the form of Special Allowance to justices, judges and all other positions in the Judiciary with the equivalent rank of justices of the Court of Appeals and judges of the Regional Trial Court. Section 2 thereof reads:
[2]

Sec. 2. Grant of Special Allowances. All justices, judges and all other positions in the Judiciary with the equivalent rank of justices of the Court of Appeals and judges of the Regional Trial Court as authorized under existing laws shall be granted special allowances equivalent to one hundred percent (100%) of the basic monthly salary specified for their respective salary grades under Republic Act No. 6758, as amended, otherwise known as the Salary Standardization Law, to be implemented for a period of four (4) years. The grant of special allowances shall be implemented uniformly in such sums or amounts equivalent to twenty-five percent (25%) of the basic salaries of the positions covered hereof. Subsequent implementation shall be in such sums and amounts and up to the extent only that can be supported by the funding source specified in Section 3 hereof.
Further, Section 5 of the same law provides:

Sec. 5. Inclusion in the Computation of Retirement Benefits. For purposes of retirement, only the allowances actually received and the tranche or tranches of the special allowance already implemented and received pursuant to this Act by the justices, judges and all other positions in the Judiciary with the equivalent rank of justices of the Court of Appeals and judges of the Regional Trial Court as authorized under existing laws shall, at the date of their retirement, be included in the computation of their respective retirement benefits.
On March 9, 2004, in A.M. No. 03-12-04-SC ( Re: Possible Means to Implement the Special Allowance under R.A. 9227 and to Increase the Judiciary Development Fund ), the Court promulgated the GUIDELINES ON THE GRANT OF ADDITIONAL COMPENSATION IN THE FORM OF SPECIAL ALLOWANCE FOR JUSTICES AND JUDGES IN THE JUDICIARY AND ALL OTHER OFFICIALS WITH THE EQUIVALENT RANK OF JUSTICES OF THE COURT OF APPEALS AND JUDGES OF THE REGIONAL TRIAL COURT. The Guidelines provide for the manner of the implementation in this wise:

4.1 The Special Allowance shall be implemented uniformly in such sums or amounts equivalent to twenty-five percent (25%) of the actual basic monthly salaries for the positions covered starting 11 November 2003 until the one hundred percent (100%) special allowance is fully implemented. If the source of fund is insufficient to cover the twenty-five percent (25%) special allowance for any year, it shall be granted in such sums and amounts and up to the extent only that can be supported by the funding source specified in Section 3 of Rep. Act No. 9227; provided that annually the special allowance shall always be twentyfive percent (25%) of the actual basic monthly salary.

The Guidelines, likewise, reiterate that:

4.2 For purposes of computing the retirement benefits, only the special allowance actually received and that which has accrued at the time of retirement shall be included.
Paragraph 7.0 thereof states that cases not covered thereby shall be referred to the Chief Justice for resolution. Judge Gustilo claims that pursuant to OCA Circular No. 48-2004 dated March 3, 2004, the first tranche of the Special Allowance equivalent to 25% was implemented starting November 11, 2003. The next 25% (second tranche) will be implemented on November 11, 2004. In this connection, Judge Gustilo appeals to the Chief Justice that, in the computation of his retirement benefits, the second tranche of the Special Allowance be included since his retirement is only one (1) month and twelve (12) days before its implementation on November 11, 2004. In support thereof, Judge Gustilo points out that in the past, Judges who retire in October are included in the grant of the December 13th month pay. He, thus, invokes the liberal policy of the Court in granting benefits to the underpaid Trial Court Judges. In the Memorandum dated June 18, 2004 for the Chief Justice, the Office of the Court Administrator (OCA) recommends that the request of Judge Gustilo be granted. The OCA cites Judge Gustilos service record in the Judiciary, which started on January 18, 1983, including his exemplary record of disposing cases at an average of 2.25 cases each month. It also mentions that Judge Gustilo, as Executive Judge, introduced several innovations in the Iloilo City courts and was able to manage well the 17 judges under his administrative supervision. Further, Judge Gustilo was the recipient of several awards and recognitions. Considering the foregoing, the OCA concludes that it is but just and fair that the second additional Special Allowance of 25% be granted to him and included in the computation of his retirement benefits.
[3] [4] [5]

In compliance with the Courts Resolution dated July 6, 2004, referring Judge Gustilos letter and the OCAs memorandum to her for study and recommendation, Chief Attorney Edna E. Dio submitted her Report dated July 15, 2004. The Chief Attorney recommends that Judge Gustilos request be denied for not being in accord with Rep. Act No. 9227 and the Guidelines promulgated by the Court. After a careful evaluation of Judge Gustilos letter, the OCAs memorandum and the Chief Attorneys report, the Court, regrettably, cannot grant the request of Judge Gustilo. It is axiomatic that when the law is clear, the function of the courts is simple application, not interpretation or circumvention. With respect to the manner of computation of the retirement benefits in light of the Special Allowance granted under Rep. Act No. 9227, Section 5 thereof, quoted anew below, could not be any clearer:
[6]

Sec. 5. Inclusion in the Computation of Retirement Benefits . For purposes of retirement, only the allowances actually received and the tranche or tranches of the

special allowance already implemented and received pursuant to this Act by the justices, judges and all other positions in the Judiciary with the equivalent rank of justices of the Court of Appeals and judges of the Regional Trial Court as authorized under existing laws shall, at the date of their retirement, be included in the computation of their respective retirement benefits.
A plain reading of the above provision shows that, for purposes of retirement, only the allowances actually received and the tranche or tranches already received and implemented, upon the date of retirement, shall be included in the computation of the retirement benefits. Otherwise put, before the Special Allowance could be considered in the computation of retirement benefits, it should have been actually received and the tranche or tranches thereof should have been already implemented and received at the date of retirement. Section 5 of Rep. Act No. 9227 is clear and unambiguous. There is no room for its interpretation. Further, the foregoing exchange among the members of the Bicameral Conference Committee on the Disagreeing Provisions of Senate Bill (SB) No. 2018 and House Bill (HB) No. 5178 is particularly instructive:
[7] [8]

... THE CHAIRMAN (SEN. PANGILINAN). Accepted. Section 4. No questions? (Silence) Section 5. (Silence) Just again for purposes of record and clarification, Section 5, lines 3 and 4, For purposes of retirement, only the allowances actually received, and so forth and so on, I just like to make it clear that the computation of retirement would include the salary already being received, plus the special allowance. THE CO-CHAIRMAN (REP. ANDAYA). Yes. THE CHAIRMAN (SEN. PANGILINAN). Because this seems to suggest that you compute, rather the computation of retirement will be on the basis only of the special allowance. So, at least, lets make that on record. THE CO-CHAIRMAN (REP. ANDAYA). Yes. On record, yes. And I think that first word in the title of Section 5, Inclusion also explains that. REP. LIBANAN. Mr. Chairman.

THE CO-CHAIRMAN (REP. ANDAYA). Congressman Libanan. REP. LIBANAN. For the sake of further clarification, would it mean that if, for example, a judge retires on the second year of the implementation, so his retirement benefits would be only computed. THE CHAIRMAN (SEN. PANGILINAN). On the basis of what he is already receiving. REP. LIBANAN. on the basis of [what] he is receiving, not on the 100 percent. THE CO-CHAIRMAN (REP. ANDAYA). Actually receiving. That is correct. REP. LIBANAN. Thank you, Mr. Chairman. ... THE CHAIRMAN (SEN. PANGILINAN). Can we now go back to Section 5? THE CHAIRMAN (REP. ANDAYA). Section 5, Mr. Chairman, just a suggestion but in the House panel SEN. ARROYO. Kasi kung mandatory, doon sa voluntary, hindi naman dapat iyon. THE CHAIRMAN (REP. ANDAYA). Ill be constrained to withdraw my proposal. SEN. ARROYO. But your idea is very attractive. SEN. VILLAR. In fact, its too attractive. In the first place, iyong allowance is already part of the retirement benefit. Iyon, malaking bagay na iyon, eh. Mr. Chairman, may add-on pa. Medyo sobra naman yata na iyon. SEN. ARROYO. No, because by the accident of birth, when they retire, they retire on the second year, halimbawa, 68 sila ngayon. Pagkatapos, mandatorily they have to retire at the age of 70, di iyong benefits nila is THE CHAIRMAN (SEN. PANGILINAN). For those born in 1934 up to 1937. THE CHAIRMAN (REP. ANDAYA). But the fact here remains, the allowances they have been receiving so far which is over and above, kasama na talaga sa retirement. I mean, sobra-sobra na, eh. Lahat na lang ng allowance na puwedeng

gawin, nandoon na, eh. At saka nagre-retire pa sila sa 70, ibig sabihin talagang marami na iyan. THE CHAIRMAN (SEN. PANGILINAN). Okay? THE CHAIRMAN (REP. ANDAYA). Okay. THE CHAIRMAN (SEN. PANGILINAN). So, as is? THE CHAIRMAN (REP. ANDAYA). Nandoon na, eh. THE CHAIRMAN (SEN. PANGILINAN). So, whether they retire at 60 or 70, whether they opt for early retirement or mandatory retirement, they will receive the actual. Would it not be a good idea to encourage them to stay on
[9]

Thus, the congressional records as well as the text itself of Rep. Act No. 9227 reveal the unequivocal intention of the lawmakers that only the Special Allowance actually received at the date of retirement shall be included in the computation of the retirement benefits. The Guidelines promulgated by this Court pursuant to Rep. Act No. 9227 is even more definite as it used the term accrued in this wise: only the special allowance actually received and that which has accrued at the time of retirement shall be included. As correctly reasoned by the Chief Attorney:

Notably, the phrase has accrued at the time of retirement is used in the Guidelines instead of the tranche or tranches of the special allowance already implemented and received which is used in Section 5 of Rep. Act No. 9227. Nevertheless, the same meaning is conveyed. The word accrue means to come into existence as an enforceable claim: vest as a right or to come by way of increase or addition: arise as a growth or result or to be periodically accumulated in the process of time whether as an increase or a decrease. Hence, a Special Allowance that has not yet come into existence as an enforceable claim or has not yet vested on the recipient judge as a matter of right cannot be considered in the computation of retirement benefits.
[10]

Indeed, accrue in its past tense is in sense of due and demandable; vested . In the case of Judge Gustilo, on the date of his retirement, the second tranche of the Special Allowance has not accrued as yet; hence, it cannot be said that the same is due and demandable or that it has vested insofar as he is concerned.
[11]

The Chief Attorney, likewise, correctly posits that the strict application of Section 5 of Rep. Act No. 9227 is called for by the fact that, under Section 3 thereof, the source for the Special Allowance is the Judiciary Development Fund (JDF), established under Presidential Decree No. 1949, which basically comes from the docket fees paid by litigants:
[12]

... As such, the JDF as a fund source is not constant or fixed in amount, as its amount depends on the amount collected by the courts and the amount of increase in docket fees that the Court would impose. The fact of the JDF becoming insufficient has been foreseen by the Court and is reflected in the second paragraph of 4.1 of the Guidelines quoted above. It is worth noting that until now, the first tranche of the Special Allowance has been received only for the months of 11 November 2003 until February 2004. The delay in receipt thereof may continue if courts nationwide do not timely transmit the reports of collections to the OCA, as the JDF should be disbursed only if the reports of collections and the deposits under the JDF account for the Special Allowance tally in accordance with accounting and auditing rules.
[13]

While this Court had, in certain cases, adopted a liberal stance in interpreting retirement laws in favor of the retiree, it cannot do so in this case because, as earlier stated, Section 5 of Rep. Act No. 9227 is quite clear and unambiguous. In other words, there is no room for interpretation but only simple application of the law.
[14]

ACCORDINGLY, the request of Judge Tito G. Gustilo that the second 25% or second tranche of the Special Allowance granted under Rep. Act No. 9227 be included in the computation of his retirement benefits is DENIED. SO ORDERED. Davide, Jr., C.J., Puno, Panganiban, Quisumbing, Ynares-Santiago, Carpio, Austria-Martinez, Corona, Carpio-Morales, Azcuna, Tinga, and Chico-Nazario, JJ., concur. Sandoval-Gutierrez, J., on leave.

An Act Granting Additional Compensation in the Form of Special Allowances for Justices, Judges and all Other Positions in the Judiciary with the Equivalent Rank of Justices of the Court of Appeals and Judges of the Regional Trial Court, and For Other Purposes.
[1]

Section 10 of Republic Act No. 9227 provides that it shall take effect fifteen (15) days after its publication in at least two (2) national newspapers of general circulation. It was published in Today on October 25, 2003 and the Times on October 27, 2003.
[2]

Signed by Court Administrator Presbitero J. Velasco, Jr. and Senior Deputy Court Administrator Zenaida N. Elepao.
[3]

These awards are: (1) National Awardee of the 3rd PNP Anniversary on January 29, 1994 at Camp Crame, Quezon City; (2) Plaque of Recognition for his services as Executive Judge given on March 4, 1991; (3) Plaque of Appreciation given by the IBP, Iloilo Chapter, on April 4, 1997; (4) Certificate of Appreciation given at the Forum with Educators, Media and other Concerned Sectors on Enhancing Communication Between the Judiciary and the Citizenry, given at the Days Hotel, Iloilo City, on September 11, 1998; and (5) Certificate of Recognition for his assistance to the Supreme Court Centenary Celebrations Executive Committee, given on June 11, 2001.
[4] [5]

Memorandum of the Office of the Court Administrator, p. 2. AB Leasing and Finance Corporation v. Commissioner of Internal Revenue, 405 SCRA 380 (2003).

[6]

The Senate Conferees were Senators Francis Pangilinan, Manuel Villar, Jr., Joker Arroyo, Edgardo Angara and John Osmea.
[7]

The House of Representatives Conferees were Representatives Rolando Andaya, Jr., Marcelino Libanan, Rodolfo Albano, Jr., Danton Bueser, Rolex Suplico, Gilbert Remulla and Bellaflor AngaraCastillo.
[8]

SB No. 2018 and HB No. 5178 became Rep. Act No. 9227.

Deliberations of the Bicameral Conference Committee on the Disagreeing Provisions of SB No. 2018 and HB No. 5178, September 3, 2003, pp. 17-32.
[9] [10]

Report of the Chief Attorney dated July 15, 2004, p. 5. BLACKS LAW DICTIONARY, 5th ed., p. 19. The said provision states:

[11]

[12]

Sec. 3. Funding Source. The amount necessary to implement the additional compensation in the form of special allowances granted under this Act shall be sourced from, and charged against, the legal fees originally prescribed, imposed and collected under Rule 141 of the Rules of Court prior to the promulgation of the amendments under Presidential Decree No. 1949, dated July 18, 1984, and from the increases in current fees and new fees which may be imposed by the Supreme Court of the Philippines after the effectivity of this Act. In the event that the said amounts are insufficient to cover the grant of allowances on the last year of implementation of this Act, the National Government shall subsidize the special allowance granted for justices, judges and all other positions in the Judiciary with the equivalent rank of justices of the Court of Appeals and judges of the Regional Trial Court as authorized under existing laws in an amount not exceeding One hundred sixty-five million pesos (Php165,000,000.00) per annum. If the collections from any increase in current fees and any new fees imposed after the effectivity of this Act exceed the amount needed to fund the special allowances granted to justices, judges and all other positions in the Judiciary with the equivalent rank of justices of the Court of Appeals and judges of the Regional Trial Court as authorized under existing laws, the surplus may be used by the Chief Justice of the Supreme Court to grant additional allowances exclusively to other court personnel not covered by the benefits granted under this Act.
[13]

Id. at 6. See for example In re: Ruperto G. Martin, 187 SCRA 477 (1990).

[14]

CECILLEVILLE REALTY and SERVICE CORPORATION, petitioner, vs., THE COURT OF APPEALS and HERMINIGILDO PASCUAL,respondents. DECISION
FRANCISCO, J.:

In synthesis, these are the antecedent facts:

Petitioner Cecilleville Realty and Service Corporation is the owner of a parcel of land in Catmon, Sta. Maria, Bulacan, covered by T.C.T. No. 86.494 (M). Private respondent Herminigildo Pascual occupies a portion thereof. Despite repeated demands, private respondent refused to vacate and insisted that he is entitled to occupy the land since he is helping his mother Ana Pascual, petitioners tenant, to cultivate the land in question. Thenceforth, petitioner instituted an ejectment suit against private respondent before the Municipal Trial Court of Sta. Maria, Bulacan. Finding no tenancy relationship between petitioner and private respondent, the Municipal Trial Court on September 17, 1992, ordered private respondent to vacate the land and to pay the sum of P10,000.00, as attorneys fees and another sum of P500.00 monthly from the filing of [the] complaint. Private respondent appealed to the Regional Trial Court which, on April 4, 1994, set aside the Municipal Trial Courts decision and remanded the case to the DARAB for further adjudication. Thus:
[1]

There is no question that Ana Pascual may seek the assistance of her immediate farm household in the cultivation of the land. The law protects her in this regard. If the tenant Ana Pascual will be deprived of such right by ejecting her son Herminigildo Pascual from the land, it is tantamount to circumventing the law as Ana Pascual will be deprived of the helping hands of her son. What could not be done directly cannot be done indirectly. The issue of tenancy relationship between the plaintiff corporation and Ana Pascual cannot be avoided in this ejectment case. WHEREFORE, in the light of the foregoing, this Court hereby orders that the instant case be REMANDED to the DARAB for further adjudication and the decision of the Court a quo is hereby SET ASIDE x x x.
[2]

Petitioner moved for reconsideration but to no avail; hence, it appealed to respondent Court of Appeals. In its assailed decision , respondent court dismissed petitioners appeal. The entire ruling of respondent court in point states:
[3] [4]

We find this petition devoid of merit. There is a clear tenancy relationship between the plaintiff and the defendant, such that the defendant cannot be ejected from the premises like a common squatter. The tenancy relationship dated back to 1976 when the defendants father, Sotero Pascual, became the tenant of Jose A. Resurreccion, the President of the Cecilleville Realty and Service Corporation. This tenancy continued until 1991 when Sotero Pascual died and was succeeded by his wife Ann Pascual by operation of law. That Ana Pascual is entitled to the security of tenure was upheld by the DARAB in its Decision of November 8, 1993 which ordered the plaintiff to respect and maintain the peaceful possession and cultivation of the property by the defendant Ana Pascual and ordered the execution of a agricultural leasehold contract between the parties.

The defendant Herminigildo Pascual is occupying and working on the landholding to help his mother, a bona-fide tenant. He is an immediate member of the family and is entitled to work on the land. As the lower court held: Under Republic Act No. 1199, as amended by RA 2263, entitled An Act to Govern the Relations Between Landholders and Tenants of Agricultural Lands (Leasehold and Share Tenancy), Section 5(a) defines the term tenant, to wit: Sec. 5. (a) A tenant shall mean a person who, himself and with the aid available from within his immediate farm household, cultivates the land belonging to, or possessed by, another, with the latters consent for purposes of production, sharing the produce with the landholder under the share tenancy system, or paying to the landholder a price certain or ascertainable in produce or in money or both, under the leasehold tenancy system. Similarly, the term immediate farm household is defined in the same section as follows: (o) Immediate farm household includes the members of the family of the tenant, and such other persons, whether related to the tenant or not, who are dependent upon him for support and who usually help him operate the farm enterprise. The defendant, although not the tenant himself, is afforded the protection provided by law as his mother is already old and infirm and is allowed to avail of the labor of her immediate household. He is entitled to the security of tenure accorded his mother. His having a house of his own on the property is merely incidental to the tenancy. WHEREFORE, the Decision appealed from is AFFIRMED with costs against the petitioner. (Underscoring supplied.)
[5]

Dissatisfied, petitioner filed the instant petition for review on certiorari anchored on a lone assignment of error, to wit:

Petitioner respectfully contends that the Honorable Court of Appeals erred in not finding that while the private respondent is entitled to work on the agricultural land of petitioner in his capacity as member of the family of tenant Ana Pascual, nonetheless he can not occupy a substantial portion thereof and utilize the same for residential purposes.
[6]

On August 19, 1996, the Court gave due course to the petition and required the parties to submit their respective memoranda. Thereafter, the Court deliberated on the arguments set out in their pleadings. The petition is impressed with merit. At the outset, the Court notes that petitioner does not dispute respondent courts finding that Ana Pascual, private respondents mother, is its bona-fide tenant. Neither does petitioner question the right of Ana Pascual, the tenant, to be assisted by a member of her household, who in this case is respondent Herminigildo Pascual. What petitioner impugns as erroneous is respondent courts gratuitous pronouncement which effectively granted private respondent not only a home lot, but also the right to maintain his own house in petitioners small parcel of land despite the fact that Ana Pascual, the adjudged bona-fide tenant, has previously been given a home lot and has an existing house thereon. Private respondent Herminigildo Pascual, for his part, insists that he is entitled by law, (Section 22, (3) of Rep. Act No.1199, as amended by Rep. Act No. 2263), to a home lot and the right to maintain another house different from that of his mother. To bolster his contention, private respondent adopts respondent courts ruling finding him as a member of Ana Pascuals immediate farm household. Private respondent holds, quoting extensively from the assailed decision, that although not the tenant himself, [he] is afforded the protection provided by law as his mother is already old and infirm and is allowed to avail of the labor of her immediate household. x x x. [And] [h]is having a house of his own on the property is merely incidental to the tenancy.
[7] [8] [9] [10]

As the Court sees it, the issue lies on the interpretation of Section 22, paragraph 3, of Rep. Act No. 1199, as amended by Rep. Act No. 2263. This section provides in full as follows:

SEC. 22
x x x xxx xxx

(3) The tenant shall have the right to demand for a home lot suitable for dwelling with an area of not more than 3 per cent of the area of his landholding provided that it does not exceed one thousand square meters and that it shall be located at a convenient and suitable place within the land of the landholder to be designated by the latter where the tenant shall construct his dwelling and may raise vegetables, poultry, pigs and other animals and engage in minor industries, the products of which shall accrue to the tenant exclusively. The tenants dwelling shall not be removed from the lot already assigned to him by the landholder, except as provided in section twenty-six unless there is a severance of the tenancy relationship between them as provided under section nine, or unless the tenant is ejected for cause, and only after the expiration of forty-five days following such severance of relationship or dismissal for cause. (Emphasis supplied)

The law is unambiguous and clear. Consequently, it must be applied according to its plain and obvious meaning, according to its express terms. Verba legis non est recedendum, or from the words of a statute there should be no departure. As clearly provided, only a tenant is granted the right to have a home lot and the right to construct or maintain a house thereon. And here, private respondent does not dispute that he is not petitioners tenant. In fact, he admits that he is a mere member of Ana Pascuals immediate farm household. Under the law, therefore, we find private respondent not entitled to a home lot. Neither is he entitled to construct a house of his own or to continue maintaining the same within the very small landholding of petitioner. To rule otherwise is to make a mockery of the purpose of the tenancy relations between a bona-fide tenant and the landholder as envisioned by the very law, i.e., Rep. Act No. 1199, as amended, upon which private respondent relies, to wit:
[11]

Sec. 2. Purpose. It is the purpose of this Act to establish agricultural tenancy relations between landholders and tenants upon the principle of social justice; to afford adequate protection to the rights of both tenants and landholders ; to insure the equitable division of the produce and income derived from the land ; to provide tenant-farmers with incentives to greater and more efficient agricultural production; to bolster their economic position and to encourage their participation in the development of peaceful, vigorous and democratic rural communities. (Emphasis supplied)
Thus, if the Court were to follow private respondents argument and allow all the members of the tenants immediate farm household to construct and maintain their houses and to be entitled to not more than one thousand (1,000) square meters each of home lot, as what private respondent wanted this Court to dole-out, then farms will be virtually converted into rows, if not colonies, of houses. How then can there be equitable division of the produce and income derived from the land and more efficient agricultural production if the lands productivity and use for growing crops is lessened or, more appropriately, obliterated by its unceremonious conversion into residential use? It is a fundamental principle that once the policy or purpose of the law has been ascertained, effect should be given to it by the judiciary. This Court should not deviate therefrom.
[12]

Further, it is undisputed that Ana Pascual, the tenant and private respondents mother, has an existing home lot and a house on the subject property in which private respondent may take refuge while attending to his work. Curiously, despite its availability private respondent chose to construct, without petitioners permission, a concrete house of his own thereby saving him the trouble of paying appropriate rents. If the Court were to abide by the respondent courts inordinate pronouncement that private respondent is entitled to maintain his own house then we will be condoning the deprivation of a landholders property without even a fraction of compensation. It taxes the credulity of the Court, therefore, to insist that private respondents having a house of his own on the property is merely incidental to the tenancy and to afford him the convenience of attending to the cultivation of the land for, in the first place, he is not the tenant as he himself admits. Besides, the incidental use of his own house can very

well be provided by the existing house of his mother, who with her old and infirm condition, surely needs the attention and care of her children, one of whom is herein private respondent. Be it emphasized that like the tenant the landholder is also entitled to the protection of the law as one of the purposes of the Act is to afford adequate protection to the rights of BOTH tenants and landholders . The policy of social justice, we reiterate, is not intended to countenance wrongdoing simply because it is committed by the underprivileged. Compassion for the poor, as we said in Galay, et. al. v. Court of Appeals, et. al. is an imperative of every humane society but only when the recipient is not a rascal claiming an undeserved privilege.
[13] [14]

WHEREFORE, the petition is GRANTED. The part of the decision appealed from which is inconsistent herewith is REVERSED and SET ASIDE. The decision of the Municipal Trial Court directing the private respondent Herminigildo Pascual to vacate the portion of the landholding he occupies and to pay the petitioner attorneys fees in the amount of P10,000.00 and another sum of P500.00 monthly from the filing of complaint is hereby REINSTATED. Costs against private respondent. SO ORDERED. Narvasa, C.J., (Chairman), Davide, Jr., Melo, and Panganiban, JJ., concur.

[1]

Decision of the Court of Appeals, p. 2; Rollo, p. 9. CA Decision, p.4; Rollo, p. 11. C.A.- G.R. SP. No. 34628, February 28, 1995. Fourth Division: Montoya, J., ponente; Paras, Hofilea, JJ., concurring. CA Decision, pp. 4-6; Rollo, pp. 45-47. Petition, p. 4; Rollo, p. 25. Petition, p. 5; Rollo, p. 26.

[2]

[3]

[4]

[5]

[6]

[7]

Ana Pascual is tilling a mere two (2) hectare parcel of land. (Memorandum for the Petitioner, p.6; Rollo, p. 88)
[8] [9]

See: Memorandum for Private Respondent, p. 4; Rollo, p. 73. Id., pp. 3-4; Rollo, pp. 72-73. Globe-Mackay Cable and Radio Corp. v. NLRC, 206 SCRA 701, 711. Vda. de Macabenta v. Davao Stevedore Terminal Company, 32 SCRA 553, 557. Section 2, Rep. Act No. 1199, as amended. 250 SCRA 629,638.

[10]

[11]

[12]

[13]

[14]

G.R. No. L-19650

September 29, 1966

CALTEX (PHILIPPINES), INC., petitioner-appellee, vs. ENRICO PALOMAR, in his capacity as THE POSTMASTER GENERAL, respondent-appellant. Office of the Solicitor General for respondent and appellant. Ross, Selph and Carrascoso for petitioner and appellee.

CASTRO, J.: In the year 1960 the Caltex (Philippines) Inc. (hereinafter referred to as Caltex) conceived and laid the groundwork for a promotional scheme calculated to drum up patronage for its oil products. Denominated "Caltex Hooded Pump Contest", it calls for participants therein to estimate the actual number of liters a hooded gas pump at each Caltex station will dispense during a specified period. Employees of the Caltex (Philippines) Inc., its dealers and its advertising agency, and their immediate families excepted, participation is to be open indiscriminately to all "motor vehicle owners and/or licensed drivers". For the privilege to participate, no fee or consideration is required to be paid, no purchase of Caltex products required to be made. Entry forms are to be made available upon request at each Caltex station where a sealed can will be provided for the deposit of accomplished entry stubs. A three-staged winner selection system is envisioned. At the station level, called "Dealer Contest", the contestant whose estimate is closest to the actual number of liters dispensed by the hooded pump thereat is to be awarded the first prize; the next closest, the second; and the next, the third. Prizes at this level consist of a 3-burner kerosene stove for first; a thermos bottle and a Ray-OVac hunter lantern for second; and an Everready Magnet-lite flashlight with batteries and a screwdriver set for third. The first-prize winner in each station will then be qualified to join in the "Regional Contest" in seven different regions. The winning stubs of the qualified contestants in each region will be deposited in a sealed can from which the first-prize, second-prize and third-prize winners of that region will be drawn. The regional first-prize winners will be entitled to make a threeday all-expenses-paid round trip to Manila, accompanied by their respective Caltex dealers, in order to take part in the "National Contest". The regional second-prize and third-prize winners will receive cash prizes of P500 and P300, respectively. At the national level, the stubs of the seven regional first-prize winners will be placed inside a sealed can from which the drawing for the final first-prize, second-prize and third-prize winners will be made. Cash prizes in store for winners at this final stage are: P3,000 for first; P2,000 for second; Pl,500 for third; and P650 as consolation prize for each of the remaining four participants. Foreseeing the extensive use of the mails not only as amongst the media for publicizing the contest but also for the transmission of communications relative thereto, representations were made by Caltex with the postal authorities for the contest to be cleared in advance for mailing, having in view sections 1954(a), 1982 and 1983 of the Revised Administrative Code, the pertinent provisions of which read as follows: SECTION 1954. Absolutely non-mailable matter . No matter belonging to any of the following classes, whether sealed as first-class matter or not, shall be imported into the Philippines through the mails, or to be deposited in or carried by the mails of the Philippines, or be delivered to its addressee by any officer or employee of the Bureau of Posts: Written or printed matter in any form advertising, describing, or in any manner pertaining to, or conveying or purporting to convey any information concerning any lottery,

gift enterprise, or similar scheme depending in whole or in part upon lot or chance, or any scheme, device, or enterprise for obtaining any money or property of any kind by means of false or fraudulent pretenses, representations, or promises. "SECTION 1982. Fraud orders.Upon satisfactory evidence that any person or company is engaged in conducting any lottery, gift enterprise, or scheme for the distribution of money, or of any real or personal property by lot, chance, or drawing of any kind, or that any person or company is conducting any scheme, device, or enterprise for obtaining money or property of any kind through the mails by means of false or fraudulent pretenses, representations, or promises, the Director of Posts may instruct any postmaster or other officer or employee of the Bureau to return to the person, depositing the same in the mails, with the word "fraudulent" plainly written or stamped upon the outside cover thereof, any mail matter of whatever class mailed by or addressed to such person or company or the representative or agent of such person or company. SECTION 1983. Deprivation of use of money order system and telegraphic transfer service.The Director of Posts may, upon evidence satisfactory to him that any person or company is engaged in conducting any lottery, gift enterprise or scheme for the distribution of money, or of any real or personal property by lot, chance, or drawing of any kind, or that any person or company is conducting any scheme, device, or enterprise for obtaining money or property of any kind through the mails by means of false or fraudulent pretenses, representations, or promise, forbid the issue or payment by any postmaster of any postal money order or telegraphic transfer to said person or company or to the agent of any such person or company, whether such agent is acting as an individual or as a firm, bank, corporation, or association of any kind, and may provide by regulation for the return to the remitters of the sums named in money orders or telegraphic transfers drawn in favor of such person or company or its agent. The overtures were later formalized in a letter to the Postmaster General, dated October 31, 1960, in which the Caltex, thru counsel, enclosed a copy of the contest rules and endeavored to justify its position that the contest does not violate the anti-lottery provisions of the Postal Law. Unimpressed, the then Acting Postmaster General opined that the scheme falls within the purview of the provisions aforesaid and declined to grant the requested clearance. In its counsel's letter of December 7, 1960, Caltex sought a reconsideration of the foregoing stand, stressing that there being involved no consideration in the part of any contestant, the contest was not, under controlling authorities, condemnable as a lottery. Relying, however, on an opinion rendered by the Secretary of Justice on an unrelated case seven years before (Opinion 217, Series of 1953), the Postmaster General maintained his view that the contest involves consideration, or that, if it does not, it is nevertheless a "gift enterprise" which is equally banned by the Postal Law, and in his letter of December 10, 1960 not only denied the use of the mails for purposes of the proposed contest but as well threatened that if the contest was conducted, "a fraud order will have to be issued against it (Caltex) and all its representatives". Caltex thereupon invoked judicial intervention by filing the present petition for declaratory relief against Postmaster General Enrico Palomar, praying "that judgment be rendered declaring its 'Caltex Hooded Pump Contest' not to be violative of the Postal Law, and ordering respondent to allow petitioner the use of the mails to bring the contest to the attention of the public". After issues were joined and upon the respective memoranda of the parties, the trial court rendered judgment as follows: In view of the foregoing considerations, the Court holds that the proposed 'Caltex Hooded Pump Contest' announced to be conducted by the petitioner under the rules marked

as Annex B of the petitioner does not violate the Postal Law and the respondent has no right to bar the public distribution of said rules by the mails. The respondent appealed. The parties are now before us, arrayed against each other upon two basic issues: first, whether the petition states a sufficient cause of action for declaratory relief; and second, whether the proposed "Caltex Hooded Pump Contest" violates the Postal Law. We shall take these up in seriatim. 1. By express mandate of section 1 of Rule 66 of the old Rules of Court, which was the applicable legal basis for the remedy at the time it was invoked, declaratory relief is available to any person "whose rights are affected by a statute . . . to determine any question of construction or validity arising under the . . . statute and for a declaration of his rights thereunder" (now section 1, Rule 64, Revised Rules of Court). In amplification, this Court, conformably to established jurisprudence on the matter, laid down certain conditions sine qua non therefor, to wit: (1) there must be a justiciable controversy; (2) the controversy must be between persons whose interests are adverse; (3) the party seeking declaratory relief must have a legal interest in the controversy; and (4) the issue involved must be ripe for judicial determination (Tolentino vs. The Board of Accountancy, et al., G.R. No. L-3062, September 28, 1951; Delumen, et al. vs. Republic of the Philippines, 50 O.G., No. 2, pp. 576, 578-579; Edades vs. Edades, et al., G.R. No. L-8964, July 31, 1956). The gravamen of the appellant's stand being that the petition herein states no sufficient cause of action for declaratory relief, our duty is to assay the factual bases thereof upon the foregoing crucible. As we look in retrospect at the incidents that generated the present controversy, a number of significant points stand out in bold relief. The appellee (Caltex), as a business enterprise of some consequence, concededly has the unquestioned right to exploit every legitimate means, and to avail of all appropriate media to advertise and stimulate increased patronage for its products. In contrast, the appellant, as the authority charged with the enforcement of the Postal Law, admittedly has the power and the duty to suppress transgressions thereof particularly thru the issuance of fraud orders, under Sections 1982 and 1983 of the Revised Administrative Code, against legally nonmailable schemes. Obviously pursuing its right aforesaid, the appellee laid out plans for the sales promotion scheme hereinbefore detailed. To forestall possible difficulties in the dissemination of information thereon thru the mails, amongst other media, it was found expedient to request the appellant for an advance clearance therefor. However, likewise by virtue of his jurisdiction in the premises and construing the pertinent provisions of the Postal Law, the appellant saw a violation thereof in the proposed scheme and accordingly declined the request. A point of difference as to the correct construction to be given to the applicable statute was thus reached. Communications in which the parties expounded on their respective theories were exchanged. The confidence with which the appellee insisted upon its position was matched only by the obstinacy with which the appellant stood his ground. And this impasse was climaxed by the appellant's open warning to the appellee that if the proposed contest was "conducted, a fraud order will have to be issued against it and all its representatives." Against this backdrop, the stage was indeed set for the remedy prayed for. The appellee's insistent assertion of its claim to the use of the mails for its proposed contest, and the challenge thereto and consequent denial by the appellant of the privilege demanded, undoubtedly spawned a live controversy. The justiciability of the dispute cannot be gainsaid. There is an active antagonistic assertion of a legal right on one side and a denial thereof on the other, concerning a real not a mere theoretical question or issue. The contenders are as real as their interests are substantial. To the appellee, the uncertainty occasioned by the divergence of views on the issue of construction

hampers or disturbs its freedom to enhance its business. To the appellant, the suppression of the appellee's proposed contest believed to transgress a law he has sworn to uphold and enforce is an unavoidable duty. With the appellee's bent to hold the contest and the appellant's threat to issue a fraud order therefor if carried out, the contenders are confronted by the ominous shadow of an imminent and inevitable litigation unless their differences are settled and stabilized by a tranquilizing declaration (Pablo y Sen, et al. vs. Republic of the Philippines, G.R. No. L-6868, April 30, 1955). And, contrary to the insinuation of the appellant, the time is long past when it can rightly be said that merely the appellee's "desires are thwarted by its own doubts, or by the fears of others" which admittedly does not confer a cause of action. Doubt, if any there was, has ripened into a justiciable controversy when, as in the case at bar, it was translated into a positive claim of right which is actually contested (III Moran, Comments on the Rules of Court, 1963 ed., pp. 132-133, citing: Woodward vs. Fox West Coast Theaters, 36 Ariz., 251, 284 Pac. 350). We cannot hospitably entertain the appellant's pretense that there is here no question of construction because the said appellant "simply applied the clear provisions of the law to a given set of facts as embodied in the rules of the contest", hence, there is no room for declaratory relief. The infirmity of this pose lies in the fact that it proceeds from the assumption that, if the circumstances here presented, the construction of the legal provisions can be divorced from the matter of their application to the appellee's contest. This is not feasible. Construction, verily, is the art or process of discovering and expounding the meaning and intention of the authors of the law with respect to its application to a given case, where that intention is rendered doubtful, amongst others, by reason of the fact that the given case is not explicitly provided for in the law (Black, Interpretation of Laws, p. 1). This is precisely the case here. Whether or not the scheme proposed by the appellee is within the coverage of the prohibitive provisions of the Postal Law inescapably requires an inquiry into the intended meaning of the words used therein. To our mind, this is as much a question of construction or interpretation as any other. Nor is it accurate to say, as the appellant intimates, that a pronouncement on the matter at hand can amount to nothing more than an advisory opinion the handing down of which is anathema to a declaratory relief action. Of course, no breach of the Postal Law has as yet been committed. Yet, the disagreement over the construction thereof is no longer nebulous or contingent. It has taken a fixed and final shape, presenting clearly defined legal issues susceptible of immediate resolution. With the battle lines drawn, in a manner of speaking, the propriety nay, the necessity of setting the dispute at rest before it accumulates the asperity distemper, animosity, passion and violence of a full-blown battle which looms ahead (III Moran, Comments on the Rules of Court, 1963 ed., p. 132 and cases cited), cannot but be conceded. Paraphrasing the language in Zeitlin vs. Arnebergh 59 Cal., 2d., 901, 31 Cal. Rptr., 800, 383 P. 2d., 152, cited in 22 Am. Jur., 2d., p. 869, to deny declaratory relief to the appellee in the situation into which it has been cast, would be to force it to choose between undesirable alternatives. If it cannot obtain a final and definitive pronouncement as to whether the anti-lottery provisions of the Postal Law apply to its proposed contest, it would be faced with these choices: If it launches the contest and uses the mails for purposes thereof, it not only incurs the risk, but is also actually threatened with the certain imposition, of a fraud order with its concomitant stigma which may attach even if the appellee will eventually be vindicated; if it abandons the contest, it becomes a self-appointed censor, or permits the appellant to put into effect a virtual fiat of previous censorship which is constitutionally unwarranted. As we weigh these considerations in one equation and in the spirit of liberality with which the Rules of Court are to be interpreted in order to promote their object (section 1, Rule 1, Revised Rules of Court) which, in the instant case, is to settle, and afford relief from uncertainty and insecurity with respect to, rights and duties under a law we can see in the present case any imposition upon our jurisdiction or any futility or prematurity in our intervention. The appellant, we apprehend, underrates the force and binding effect of the ruling we hand down in this case if he believes that it will not have the final and pacifying function that a declaratory

judgment is calculated to subserve. At the very least, the appellant will be bound. But more than this, he obviously overlooks that in this jurisdiction, "Judicial decisions applying or interpreting the law shall form a part of the legal system" (Article 8, Civil Code of the Philippines). In effect, judicial decisions assume the same authority as the statute itself and, until authoritatively abandoned, necessarily become, to the extent that they are applicable, the criteria which must control the actuations not only of those called upon to abide thereby but also of those in duty bound to enforce obedience thereto. Accordingly, we entertain no misgivings that our resolution of this case will terminate the controversy at hand. It is not amiss to point out at this juncture that the conclusion we have herein just reached is not without precedent. In Liberty Calendar Co. vs. Cohen, 19 N.J., 399, 117 A. 2d., 487, where a corporation engaged in promotional advertising was advised by the county prosecutor that its proposed sales promotion plan had the characteristics of a lottery, and that if such sales promotion were conducted, the corporation would be subject to criminal prosecution, it was held that the corporation was entitled to maintain a declaratory relief action against the county prosecutor to determine the legality of its sales promotion plan. In pari materia, see also: Bunis vs. Conway, 17 App. Div. 2d., 207, 234 N.Y.S. 2d., 435; Zeitlin vs. Arnebergh, supra; Thrillo, Inc. vs. Scott, 15 N.J. Super. 124, 82 A. 2d., 903. In fine, we hold that the appellee has made out a case for declaratory relief. 2. The Postal Law, chapter 52 of the Revised Administrative Code, using almost identical terminology in sections 1954(a), 1982 and 1983 thereof, supra, condemns as absolutely nonmailable, and empowers the Postmaster General to issue fraud orders against, or otherwise deny the use of the facilities of the postal service to, any information concerning "any lottery, gift enterprise, or scheme for the distribution of money, or of any real or personal property by lot, chance, or drawing of any kind". Upon these words hinges the resolution of the second issue posed in this appeal. Happily, this is not an altogether untrodden judicial path. As early as in 1922, in "El Debate", Inc. vs. Topacio, 44 Phil., 278, 283-284, which significantly dwelt on the power of the postal authorities under the abovementioned provisions of the Postal Law, this Court declared that While countless definitions of lottery have been attempted, the authoritative one for this jurisdiction is that of the United States Supreme Court, in analogous cases having to do with the power of the United States Postmaster General, viz.: The term "lottery" extends to all schemes for the distribution of prizes by chance, such as policy playing, gift exhibitions, prize concerts, raffles at fairs, etc., and various forms of gambling. The three essential elements of a lottery are: First, consideration; second, prize; and third, chance. (Horner vs. States [1892], 147 U.S. 449; Public Clearing House vs. Coyne [1903], 194 U.S., 497; U.S. vs. Filart and Singson [1915], 30 Phil., 80; U.S. vs. Olsen and Marker [1917], 36 Phil., 395; U.S. vs. Baguio [1919], 39 Phil., 962; Valhalla Hotel Construction Company vs. Carmona, p. 233, ante.) Unanimity there is in all quarters, and we agree, that the elements of prize and chance are too obvious in the disputed scheme to be the subject of contention. Consequently as the appellant himself concedes, the field of inquiry is narrowed down to the existence of the element of consideration therein. Respecting this matter, our task is considerably lightened inasmuch as in the same case just cited, this Court has laid down a definitive yard-stick in the following terms In respect to the last element of consideration, the law does not condemn the gratuitous distribution of property by chance, if no consideration is derived directly or

indirectly from the party receiving the chance, but does condemn as criminal schemes in which a valuable consideration of some kind is paid directly or indirectly for the chance to draw a prize. Reverting to the rules of the proposed contest, we are struck by the clarity of the language in which the invitation to participate therein is couched. Thus No puzzles, no rhymes? You don't need wrappers, labels or boxtops? You don't have to buy anything? Simply estimate the actual number of liter the Caltex gas pump with the hood at your favorite Caltex dealer will dispense from to , and win valuable prizes . . . ." . Nowhere in the said rules is any requirement that any fee be paid, any merchandise be bought, any service be rendered, or any value whatsoever be given for the privilege to participate. A prospective contestant has but to go to a Caltex station, request for the entry form which is available on demand, and accomplish and submit the same for the drawing of the winner. Viewed from all angles or turned inside out, the contest fails to exhibit any discernible consideration which would brand it as a lottery. Indeed, even as we head the stern injunction, "look beyond the fair exterior, to the substance, in order to unmask the real element and pernicious tendencies which the law is seeking to prevent" ("El Debate", Inc. vs. Topacio, supra, p. 291), we find none. In our appraisal, the scheme does not only appear to be, but actually is, a gratuitous distribution of property by chance. There is no point to the appellant's insistence that non-Caltex customers who may buy Caltex products simply to win a prize would actually be indirectly paying a consideration for the privilege to join the contest. Perhaps this would be tenable if the purchase of any Caltex product or the use of any Caltex service were a pre-requisite to participation. But it is not. A contestant, it hardly needs reiterating, does not have to buy anything or to give anything of value.
1awphl.nt

Off-tangent, too, is the suggestion that the scheme, being admittedly for sales promotion, would naturally benefit the sponsor in the way of increased patronage by those who will be encouraged to prefer Caltex products "if only to get the chance to draw a prize by securing entry blanks". The required element of consideration does not consist of the benefit derived by the proponent of the contest. The true test, as laid down in People vs. Cardas, 28 P. 2d., 99, 137 Cal. App. (Supp.) 788, is whether the participant pays a valuable consideration for the chance, and not whether those conducting the enterprise receive something of value in return for the distribution of the prize. Perspective properly oriented, the standpoint of the contestant is all that matters, not that of the sponsor. The following, culled from Corpus Juris Secundum, should set the matter at rest: The fact that the holder of the drawing expects thereby to receive, or in fact does receive, some benefit in the way of patronage or otherwise, as a result of the drawing; does not supply the element of consideration. Griffith Amusement Co. vs. Morgan, Tex. Civ. App., 98 S.W., 2d., 844" (54 C.J.S., p. 849). Thus enlightened, we join the trial court in declaring that the "Caltex Hooded Pump Contest" proposed by the appellee is not a lottery that may be administratively and adversely dealt with under the Postal Law. But it may be asked: Is it not at least a "gift enterprise, or scheme for the distribution of money, or of any real or personal property by lot, chance, or drawing of any kind", which is equally prescribed? Incidentally, while the appellant's brief appears to have concentrated on the issue of consideration, this aspect of the case cannot be avoided if the remedy here invoked is to achieve its tranquilizing effect as an instrument of both curative and preventive justice. Recalling that the

appellant's action was predicated, amongst other bases, upon Opinion 217, Series 1953, of the Secretary of Justice, which opined in effect that a scheme, though not a lottery for want of consideration, may nevertheless be a gift enterprise in which that element is not essential, the determination of whether or not the proposed contest wanting in consideration as we have found it to be is a prohibited gift enterprise, cannot be passed over sub silencio. While an all-embracing concept of the term "gift enterprise" is yet to be spelled out in explicit words, there appears to be a consensus among lexicographers and standard authorities that the term is commonly applied to a sporting artifice of under which goods are sold for their market value but by way of inducement each purchaser is given a chance to win a prize (54 C.J.S., 850; 34 Am. Jur., 654; Black, Law Dictionary, 4th ed., p. 817; Ballantine, Law Dictionary with Pronunciations, 2nd ed., p. 55; Retail Section of Chamber of Commerce of Plattsmouth vs. Kieck, 257 N.W., 493, 128 Neb. 13; Barker vs. State, 193 S.E., 605, 56 Ga. App., 705; Bell vs. State, 37 Tenn. 507, 509, 5 Sneed, 507, 509). As thus conceived, the term clearly cannot embrace the scheme at bar. As already noted, there is no sale of anything to which the chance offered is attached as an inducement to the purchaser. The contest is open to all qualified contestants irrespective of whether or not they buy the appellee's products. Going a step farther, however, and assuming that the appellee's contest can be encompassed within the broadest sweep that the term "gift enterprise" is capable of being extended, we think that the appellant's pose will gain no added comfort. As stated in the opinion relied upon, rulings there are indeed holding that a gift enterprise involving an award by chance, even in default of the element of consideration necessary to constitute a lottery, is prohibited (E.g.: Crimes vs. States, 235 Ala 192, 178 So. 73; Russell vs. Equitable Loan & Sec. Co., 129 Ga. 154, 58 S.E., 88; State ex rel. Stafford vs. Fox-Great Falls Theater Corporation, 132 P. 2d., 689, 694, 698, 114 Mont. 52). But this is only one side of the coin. Equally impressive authorities declare that, like a lottery, a gift enterprise comes within the prohibitive statutes only if it exhibits the tripartite elements of prize, chance and consideration (E.g.: Bills vs. People, 157 P. 2d., 139, 142, 113 Colo., 326; D'Orio vs. Jacobs, 275 P. 563, 565, 151 Wash., 297; People vs. Psallis, 12 N.Y.S., 2d., 796; City and County of Denver vs. Frueauff, 88 P., 389, 394, 39 Colo., 20, 7 L.R.A., N.S., 1131, 12 Ann. Cas., 521; 54 C.J.S., 851, citing: Barker vs. State, 193 S.E., 605, 607, 56 Ga. App., 705; 18 Words and Phrases, perm. ed., pp. 590-594). The apparent conflict of opinions is explained by the fact that the specific statutory provisions relied upon are not identical. In some cases, as pointed out in 54 C.J.S., 851, the terms "lottery" and "gift enterprise" are used interchangeably (Bills vs. People, supra); in others, the necessity for the element of consideration or chance has been specifically eliminated by statute. (54 C.J.S., 351-352, citing Barker vs. State, supra; State ex rel. Stafford vs. Fox-Great Falls Theater Corporation, supra). The lesson that we derive from this state of the pertinent jurisprudence is, therefore, that every case must be resolved upon the particular phraseology of the applicable statutory provision. Taking this cue, we note that in the Postal Law, the term in question is used in association with the word "lottery". With the meaning of lottery settled, and consonant to the well-known principle of legal hermeneuticsnoscitur a sociis which Opinion 217 aforesaid also relied upon although only insofar as the element of chance is concerned it is only logical that the term under a construction should be accorded no other meaning than that which is consistent with the nature of the word associated therewith. Hence, if lottery is prohibited only if it involves a consideration, so also must the term "gift enterprise" be so construed. Significantly, there is not in the law the slightest indicium of any intent to eliminate that element of consideration from the "gift enterprise" therein included. This conclusion firms up in the light of the mischief sought to be remedied by the law, resort to the determination thereof being an accepted extrinsic aid in statutory construction. Mail fraud orders, it is axiomatic, are designed to prevent the use of the mails as a medium for disseminating printed

matters which on grounds of public policy are declared non-mailable. As applied to lotteries, gift enterprises and similar schemes, justification lies in the recognized necessity to suppress their tendency to inflame the gambling spirit and to corrupt public morals (Com. vs. Lund, 15 A. 2d., 839, 143 Pa. Super. 208). Since in gambling it is inherent that something of value be hazarded for a chance to gain a larger amount, it follows ineluctably that where no consideration is paid by the contestant to participate, the reason behind the law can hardly be said to obtain. If, as it has been held Gratuitous distribution of property by lot or chance does not constitute "lottery", if it is not resorted to as a device to evade the law and no consideration is derived, directly or indirectly, from the party receiving the chance, gambling spirit not being cultivated or stimulated thereby. City of Roswell vs. Jones, 67 P. 2d., 286, 41 N.M., 258." (25 Words and Phrases, perm. ed., p. 695, emphasis supplied). we find no obstacle in saying the same respecting a gift enterprise. In the end, we are persuaded to hold that, under the prohibitive provisions of the Postal Law which we have heretofore examined, gift enterprises and similar schemes therein contemplated are condemnable only if, like lotteries, they involve the element of consideration. Finding none in the contest here in question, we rule that the appellee may not be denied the use of the mails for purposes thereof. Recapitulating, we hold that the petition herein states a sufficient cause of action for declaratory relief, and that the "Caltex Hooded Pump Contest" as described in the rules submitted by the appellee does not transgress the provisions of the Postal Law. ACCORDINGLY, the judgment appealed from is affirmed. No costs. Concepcion, C.J., Reyes, J.B.L., Barrera, Dizon, Regala, Makalintal, Bengzon, J.P., Zaldivar and Sanchez, JJ., concur.