Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-5279 October 31, 1955
PHILIPPINE ASSOCIATION OF COLLEGES AND UNIVERSITIES, ETC., petitioner,
vs.
SECRETARY OF EDUCATION and the BOARD OF TEXTBOOKS, respondents.
Manuel C. Briones, Vicente G. Sinco, Manuel V. Gallego and Enrique M. Fernando for petitioner.
Office of the Solicitor General Pompeyo Diaz and Assistant Solicitor General Francisco Carreon for
respondents.
BENGZON, J .:
The petitioning colleges and universities request that Act No. 2706 as amended by Act No. 3075 and
Commonwealth Act No. 180 be declared unconstitutional, because: A. They deprive owners of
schools and colleges as well as teachers and parents of liberty and property without due process of
law; B. They deprive parents of their natural rights and duty to rear their children for civic efficiency;
and C. Their provisions conferring on the Secretary of Education unlimited power and discretion to
prescribe rules and standards constitute an unlawful delegation of legislative power.
A printed memorandum explaining their position in extenso is attached to the record.
The Government's legal representative submitted a mimeographed memorandum contending that,
(1) the matter constitutes no justiciable controversy exhibiting unavoidable necessity of deciding the
constitutional questions; (2) petitioners are in estoppel to challenge the validity of the said acts; and
(3) the Acts are constitutionally valid.
Petitioners submitted a lengthy reply to the above arguments.
Act No. 2706 approved in 1917 is entitled, "An Act making the inspection and recognition of private
schools and colleges obligatory for the Secretary of Public Instruction." Under its provisions, the
Department of Education has, for the past 37 years, supervised and regulated all private schools in
this country apparently without audible protest, nay, with the general acquiescence of the general
public and the parties concerned.
It should be understandable, then, that this Court should be doubly reluctant to consider petitioner's
demand for avoidance of the law aforesaid, specially where, as respondents assert, petitioners
suffered no wrongnor allege anyfrom the enforcement of the criticized statute.
It must be evident to any one that the power to declare a legislative enactment void is one
which the judge, conscious of the fallability of the human judgment, will shrink from
exercising in any case where he can conscientiously and with due regard to duty and official
oath decline the responsibility. (Cooley Constitutional Limitations, 8th Ed., Vol. I, p. 332.)
When a law has been long treated as constitutional and important rights have become
dependent thereon, the Court may refuse to consider an attack on its validity. (C. J. S. 16, p.
204.)
As a general rule, the constitutionality of a statute will be passed on only if, and to the extent
that, it is directly and necessarily involved in a justiciable controversy and is essential to the
protection of the rights of the parties concerned. (16 C. J. S., p. 207.)
In support of their first proposition petitioners contend that the right of a citizen to own and operate a
school is guaranteed by the Constitution, and any law requiring previous governmental approval or
permit before such person could exercise said right, amounts to censorship of previous restraint, a
practice abhorent to our system of law and government. Petitioners obviously refer to section 3 of
Act No. 2706 as amended which provides that before a private school may be opened to the public it
must first obtain a permit from the Secretary of Education. The Solicitor General on the other hand
points out that none of the petitioners has cause to present this issue, because all of them have
permits to operate and are actually operating by virtue of their permits.
1
And they do not assert that
the respondent Secretary of Education has threatened to revoke their permits. They have suffered
no wrong under the terms of lawand, naturally need no relief in the form they now seek to obtain.
It is an established principle that to entitle a private individual immediately in danger of
sustaining a direct injury as the result of that action and it is not sufficient that he has merely
a general to invoke the judicial power to determine the validity of executive or legislative
action he must show that he has sustained or is interest common to all members of the
public. (Ex parte Levitt, 302 U. S. 633 82 L. Ed. 493.)
Courts will not pass upon the constitutionality of a law upon the complaint of one who fails to
show that he is injured by its operation. (Tyler vs. Judges, 179 U. S. 405;
Hendrick vs. Maryland, 235 U. S. 610; Coffman vs.Breeze Corp., 323 U. S. 316-325.)
The power of courts to declare a law unconstitutional arises only when the interests of litigant
require the use of that judicial authority for their protection against actual interference, a
hypothetical threat being insufficient. (United Public Works vs. Mitchell, 330 U .S. 75; 91 L.
Ed. 754.)
Bona fide suit.Judicial power is limited to the decision of actual cases and controversies.
The authority to pass on the validity of statutes is incidental to the decision of such cases
where conflicting claims under the Constitution and under a legislative act assailed as
contrary to the Constitution are raised. It is legitimate only in the last resort, and as necessity
in the determination of real, earnest, and vital controversy between litigants. (Taada and
Fernando, Constitution of the Philippines, p. 1138.)
Mere apprehension that the Secretary of Education might under the law withdraw the permit of one
of petitioners does not constitute a justiciable controversy. (Cf. Com. ex rel Watkins vs. Winchester
Waterworks (Ky.) 197 S. W. 2d. 771.)
And action, like this, is brought for a positive purpose, nay, to obtain actual and positive relief.
(Salonga vs. Warner Barnes, L-2245, January, 1951.) Courts do not sit to adjudicate mere academic
questions to satisfy scholarly interest therein, however intellectually solid the problem may be. This
is specially true where the issues "reach constitutional dimensions, for then there comes into play
regard for the court's duty to avoid decision of constitutional issues unless avoidance becomes
evasion." (Rice vs. Sioux City, U. S. Sup. Ct. Adv. Rep., May 23, 1995, Law Ed., Vol. 99, p. 511.)
The above notwithstanding, in view of the several decisions of the United States Supreme Court
quoted by petitioners, apparently outlawing censorship of the kind objected to by them, we have
decided to look into the matter, lest they may allege we refuse to act even in the face of clear
violation of fundamental personal rights of liberty and property.
Petitioners complain that before opening a school the owner must secure a permit from the
Secretary of Education. Such requirement was not originally included in Act No. 2706. It was
introduced by Commonwealth Act No. 180 approved in 1936. Why?
In March 1924 the Philippine Legislature approved Act No. 3162 creating a Board of Educational
Survey to make a study and survey of education in the Philippines and of all educational institutions,
facilities and agencies thereof. A Board chairmaned by Dr. Paul Munroe, Columbia University,
assisted by a staff of carefully selected technical members performed the task, made a five-month
thorough and impartial examination of the local educational system, and submitted a report with
recommendations, printed as a book of 671 pages. The following paragraphs are taken from such
report:
PRIVATE-ADVENTURE SCHOOLS
There is no law or regulation in the Philippine Islands today to prevent a person, however
disqualified by ignorance, greed, or even immoral character, from opening a school to teach
the young. It it true that in order to post over the door "Recognized by the Government," a
private adventure school must first be inspected by the proper Government official, but a
refusal to grant such recognition does not by any means result in such a school ceasing to
exist. As a matter of fact, there are more such unrecognized private schools than of the
recognized variety. How many, no one knows, as the Division of Private Schools keeps
records only of the recognized type.
Conclusion.An unprejudiced consideration of the fact presented under the caption Private
Adventure Schools leads but to one conclusion, viz.: the great majority of them from primary
grade to university are money-making devices for the profit of those who organize and
administer them. The people whose children and youth attend them are not getting what they
pay for. It is obvious that the system constitutes a great evil. That it should be permitted to
exist with almost no supervision is indefensible. The suggestion has been made with the
reference to the private institutions of university grade that some board of control be
organized under legislative control to supervise their administration. The Commission
believes that the recommendations it offers at the end of this chapter are more likely to bring
about the needed reforms.
Recommendations.The Commission recommends that legislation be enacted to prohibit
the opening of any school by an individual or organization without the permission of the
Secretary of Public Instruction. That before granting such permission the Secretary assure
himself that such school measures up to proper standards in the following respects, and that
the continued existence of the school be dependent upon its continuing to conform to these
conditions:
(1) The location and construction of the buildings, the lighting and ventilation of the rooms,
the nature of the lavatories, closets, water supply, school furniture and apparatus, and
methods of cleaning shall be such as to insure hygienic conditions for both pupils and
teachers.
(2) The library and laboratory facilities shall be adequate to the needs of instruction in the
subjects taught.
(3) The classes shall not show an excessive number of pupils per teacher. The Commission
recommends 40 as a maximum.
(4) The teachers shall meet qualifications equal to those of teachers in the public schools of
the same grade.
xxx xxx xxx
In view of these findings and recommendations, can there be any doubt that the Government in the
exercise of its police power to correct "a great evil" could validly establish the "previous permit"
system objected to by petitioners? This is what differentiates our law from the other statutes
declared invalid in other jurisdictions. And if any doubt still exists, recourse may now be had to the
provision of our Constitution that "All educational institutions shall be under the supervision and
subject to regulation by the State." (Art. XIV, sec. 5.) The power to regulate establishments or
business occupations implies the power to require a permit or license. (53 C. J. S. 4.)
What goes for the "previous permit" naturally goes for the power to revoke such permit on account of
violation of rules or regulations of the Department.
II. This brings us to the petitioners' third proposition that the questioned statutes "conferring on the
Secretary of Education unlimited power and discretion to prescribe rules and standards constitute an
unlawful delegation of legislative power."
This attack is specifically aimed at section 1 of Act No. 2706 which, as amended, provides:
It shall be the duty of the Secretary of Public Instruction to maintain a general standard of
efficiency in all private schools and colleges of the Philippines so that the same shall furnish
adequate instruction to the public, in accordance with the class and grade of instruction given
in them, and for this purpose said Secretary or his duly authorized representative shall have
authority to advise, inspect, and regulate said schools and colleges in order to determine the
efficiency of instruction given in the same,
"Nowhere in this Act" petitioners argue "can one find any description, either general or specific, of
what constitutes a 'general standard of efficiency.' Nowhere in this Act is there any indication of any
basis or condition to ascertain what is 'adequate instruction to the public.' Nowhere in this Act is
there any statement of conditions, acts, or factors, which the Secretary of Education must take into
account to determine the 'efficiency of instruction.'"
The attack on this score is also extended to section 6 which provides:
The Department of Education shall from time to time prepare and publish in pamphlet form
the minimum standards required of primary, intermediate, and high schools, and colleges
granting the degrees of Bachelor of Arts, Bachelor of Science, or any other academic
degree. It shall also from time to time prepare and publish in pamphlet form the minimum
standards required of law, medical, dental, pharmaceutical, engineering, agricultural and
other medical or vocational schools or colleges giving instruction of a technical, vocational or
professional character.
Petitioners reason out, "this section leaves everything to the uncontrolled discretion of the Secretary
of Education or his department. The Secretary of Education is given the power to fix the standard. In
plain language, the statute turns over to the Secretary of Education the exclusive authority of the
legislature to formulate standard. . . .."
It is quite clear the two sections empower and require the Secretary of Education to prescribe rules
fixing minimum standards of adequate and efficient instruction to be observed by all such private
schools and colleges as may be permitted to operate. The petitioners contend that as the legislature
has not fixed the standards, "the provision is extremely vague, indefinite and uncertain"and for that
reason constitutionality objectionable. The best answer is that despite such alleged vagueness the
Secretary of Education has fixed standards to ensure adequate and efficient instruction, as shown
by the memoranda fixing or revising curricula, the school calendars, entrance and final
examinations, admission and accreditation of students etc.; and the system of private education has,
in general, been satisfactorily in operation for 37 years. Which only shows that the Legislature did
and could, validly rely upon the educational experience and training of those in charge of the
Department of Education to ascertain and formulate minimum requirements of adequate instruction
as the basis of government recognition of any private school.
At any rate, petitioners do not show how these standards have injured any of them or interfered with
their operation. Wherefore, no reason exists for them to assail the validity of the power nor the
exercise of the power by the Secretary of Education.
True, the petitioners assert that, the Secretary has issued rules and regulations "whimsical and
capricious" and that such discretionary power has produced arrogant inspectors who "bully heads
and teachers of private schools." Nevertheless, their remedy is to challenge those regulations
specifically, and/or to ring those inspectors to book, in proper administrative or judicial
proceedingsnot to invalidate the law. For it needs no argument, to show that abuse by the officials
entrusted with the execution of a statute does not per se demonstrate the unconstitutionality of such
statute.
Anyway, we find the defendants' position to be sufficiently sustained by the decision in Alegra vs.
Collector of Customs, 53 Phil., 394 upon holding the statute that authorized the Director of
Agriculture to "designate standards for the commercial grades of abaca, maguey and sisal" against
vigorous attacks on the ground of invalid delegation of legislative power.
Indeed "adequate and efficient instruction" should be considered sufficient, in the same way as
"public welfare" "necessary in the interest of law and order" "public interest" and "justice and equity
and substantial merits of the case" have been held sufficient as legislative standards justifying
delegation of authority to regulate. (See Taada and Fernando, Constitution of the Philippines, p.
793, citing Philippine cases.)
On this phase of the litigation we conclude that there has been no undue delegation of legislative
power.
In this connection, and to support their position that the law and the Secretary of Education have
transcended the governmental power of supervision and regulation, the petitioners appended a list
of circulars and memoranda issued by the said Department. However they failed to indicate which of
such official documents was constitutionally objectionable for being "capricious," or pain "nuisance";
and it is one of our decisional practices that unless a constitutional point is specifically raised,
insisted upon and adequately argued, the court will not consider it. (Santiago vs. Far Eastern, 73
Phil., 408.)
We are told that such list will give an idea of how the statute has placed in the hands of the
Secretary of Education complete control of the various activities of private schools, and why the
statute should be struck down as unconstitutional. It is clear in our opinion that the statute does not
in express terms give the Secretary completecontrol. It gives him powers to inspect private schools,
to regulate their activities, to give them official permits to operate under certain conditions, and to
revoke such permits for cause. This does not amount to complete control. If any of such Department
circulars or memoranda issued by the Secretary go beyond the bounds of regulation and seeks to
establish complete control, it would surely be invalid. Conceivably some of them are of this nature,
but besides not having before us the text of such circulars, the petitioners have omitted to specify. In
any event with the recent approval of Republic Act No. 1124 creating the National Board of
Education, opportunity for administrative correction of the supposed anomalies or encroachments is
amply afforded herein petitioners. A more expeditious and perhaps more technically competent
forum exists, wherein to discuss the necessity, convenience or relevancy of the measures criticized
by them. (See also Republic Act No. 176.)
If however the statutes in question actually give the Secretary control over private schools, the
question arises whether the power of supervision and regulation granted to the State by section 5
Article XIV was meant to include control of private educational institutions. It is enough to point out
that local educators and writers think the Constitution provides for control of Education by the State.
(See Tolentino, Government of the Philippine Constitution, Vol. II, p. 615; Benitez, Philippine Social
Life and Progress, p. 335.)
The Constitution (it) "provides for state control of all educational institutions" even as it enumerates
certain fundamental objectives of all education to wit, the development of moral character, personal
discipline, civic conscience and vocational efficiency, and instruction in the duties of citizenship.
(Malcolm & Laurel, Philippine Constitutional Law, 1936.)
The Solicitor General cities many authorities to show that the power to regulate means power to
control, and quotes from the proceedings of the Constitutional Convention to prove that State control
of private education was intended by the organic law. It is significant to note that the Constitution
grants power to supervise and to regulate. Which may mean greater power than mere regulation.
III. Another grievance of petitionersprobably the most significantis the assessment of 1 per cent
levied on gross receipts of all private schools for additional Government expenses in connection with
their supervision and regulation. The statute is section 11-A of Act No. 2706 as amended by
Republic Act No. 74 which reads as follows:
SEC. 11-A. The total annual expense of the Office of Private Education shall be met by the
regular amount appropriated in the annual Appropriation Act: Provided, however, That for
additional expenses in the supervision and regulation of private schools, colleges and
universities and in the purchase of textbook to be sold to student of said schools, colleges
and universities and President of the Philippines may authorize the Secretary of Instruction
to levy an equitable assessment from each private educational institution equivalent to one
percent of the total amount accruing from tuition and other fees: . . . and non-payment of the
assessment herein provided by any private school, college or university shall be sufficient
cause for the cancellation by the Secretary of Instruction of the permit for recognition granted
to it.
Petitioners maintain that this is a tax on the exercise of a constitutional rightthe right to open a
school, the liberty to teach etc. They claim this is unconstitutional, in the same way that taxes on the
privilege of selling religious literature or of publishing a newspaperboth constitutional privileges
have been held, in the United States, to be invalid as taxes on the exercise of a constitutional right.
The Solicitor General on the other hand argues that insofar as petitioners' action attempts to restrain
the further collection of the assessment, courts have no jurisdiction to restrain the collection of taxes
by injunction, and in so far as they seek to recover fees already paid the suit, it is one against the
State without its consent. Anyway he concludes, the action involving "the legality of any tax impost or
assessment" falls within the original jurisdiction of Courts of First Instance.
There are good grounds in support of Government's position. If this levy of 1 per cent is truly a mere
feeand not a taxto finance the cost of the Department's duty and power to regulate and
supervise private schools, the exaction may be upheld; but such point involves investigation and
examination of relevant data, which should best be carried out in the lower courts. If on the other
hand it is a tax, petitioners' issue would still be within the original jurisdiction of the Courts of First
Instance.
The last grievance of petitioners relates to the validity of Republic Act No. 139 which in its section 1
provides:
The textbooks to be used in the private schools recognized or authorized by the government
shall be submitted to the Board (Board of Textbooks) which shall have the power to prohibit
the use of any of said textbooks which it may find to be against the law or to offend the
dignity and honor of the government and people of the Philippines, or which it may find to be
against the general policies of the government, or which it may deem pedagogically
unsuitable.
This power of the Board, petitioners aver, is censorship in "its baldest form". They cite two U. S.
cases (Miss. and Minnesota) outlawing statutes that impose previous restraints upon publication of
newspapers, or curtail the right of individuals to disseminate teachings critical of government
institutions or policies.
Herein lies another important issue submitted in the cause. The question is really whether the law
may be enacted in the exercise of the State's constitutional power (Art. XIV, sec. 5) to supervise and
regulate private schools. If that power amounts to control of private schools, as some think it is,
maybe the law is valid. In this connection we do not share the belief that section 5 has added new
power to what the State inherently possesses by virtue of the police power. An express power is
necessarily more extensive than a mere implied power. For instance, if there is conflict between an
express individual right and the express power to control private education it cannot off-hand be said
that the latter must yield to the formerconflict of two express powers. But if the power to control
education ismerely implied from the police power, it is feasible to uphold the express individual right,
as was probably the situation in the two decisions brought to our attention, of Mississippi and
Minnesota, states where constitutional control of private schools is not expressly produced.
However, as herein previously noted, no justiciable controversy has been presented to us. We are
not informed that the Board on Textbooks has prohibited this or that text, or that the petitioners
refused or intend to refuse to submit some textbooks, and are in danger of losing substantial
privileges or rights for so refusing.
The average lawyer who reads the above quoted section of Republic Act 139 will fail to perceive
anything objectionable. Why should not the State prohibit the use of textbooks that are illegal, or
offensive to the Filipinos or adverse to governmental policies or educationally improper? What's the
power of regulation and supervision for? But those trained to the investigation of constitutional
issues are likely to apprehend the danger to civil liberties, of possible educational dictatorship or
thought control, as petitioners' counsel foresee with obvious alarm. Much depends, however, upon
the execution and implementation of the statute. Not that constitutionality depends necessarily upon
the law's effects. But if the Board on Textbooks in its actuations strictly adheres to the letter of the
section and wisely steers a middle course between the Scylla of "dictatorship" and the Charybdis of
"thought control", no cause for complaint will arise and no occasion for judicial review will develop.
Anyway, and again, petitioners now have a more expeditious remedy thru an administrative appeal
to the National Board of Education created by Republic Act 1124.
Of course it is necessary to assure herein petitioners, that when and if, the dangers they apprehend
materialize and judicial intervention is suitably invoked, after all administrative remedies are
exhausted, the courts will not shrink from their duty to delimit constitutional boundaries and protect
individual liberties.
IV. For all the foregoing considerations, reserving to the petitioners the right to institute in the proper
court, and at the proper time, such actions as may call for decision of the issue herein presented by
them, this petition for prohibition will be denied. So ordered.
Paras, C. J., Padilla, Montemayor, Reyes, A., and Jugo, JJ., concur.

G.R. No. 118577 March 7, 1995
JUANITO MARIANO, JR. et al., petitioners,
vs.
THE COMMISSION ON ELECTIONS, THE MUNICIPALITY OF MAKATI, HON. JEJOMAR BINAY,
THE MUNICIPAL TREASURER, AND SANGGUNIANG BAYAN OF MAKATI, respondents.
G.R. No. 118627 March 7, 1995
JOHN R. OSMEA, petitioner,
vs.
THE COMMISSION ON ELECTIONS, THE MUNICIPALITY OF MAKATI, HON. JEJOMAR BINAY,
MUNICIPAL TREASURER, AND SANGGUNIANG BAYAN OF MAKATI, respondents.

PUNO, J .:
At bench are two (2) petitions assailing certain provisions of Republic Act No. 7854 as
unconstitutional. R.A. No. 7854 as unconstitutional. R.A. No. 7854 is entitled, "An Act Converting the
Municipality of Makati Into a Highly Urbanized City to be known as the City of Makati."
1

G.R. No. 118577 involves a petition for prohibition and declaratory relief. It was filed by petitioners
Juanito Mariano, Jr., Ligaya S. Bautista, Teresita Tibay, Camilo Santos, Frankie Cruz, Ricardo
Pascual, Teresita Abang, Valentina Pitalvero, Rufino Caldoza, Florante Alba, and Perfecto Alba. Of
the petitioners, only Mariano, Jr., is a resident of Makati. The others are residents of Ibayo Ususan,
Taguig, Metro Manila. Suing as taxpayers, they assail as unconstitutional sections 2, 51, and 52 of
R.A. No. 7854 on the following grounds:
1. Section 2 of R.A. No. 7854 did not properly identify the land area or territorial
jurisdiction of Makati by metes and bounds, with technical descriptions, in violation of
Section 10, Article X of the Constitution, in relation to Sections 7 and 450 of the Local
Government Code;
2. Section 51 of R.A. No. 7854 attempts to alter or restart the "three consecutive
term" limit for local elective officials, in violation of Section 8, Article X and Section 7,
Article VI of the Constitution.
3. Section 52 of R.A. No. 7854 is unconstitutional for:
(a) it increased the legislative district of Makati only by special law
(the Charter in violation of the constitutional provision requiring a
general reapportionment law to be passed by Congress within three
(3) years following the return of every census;
(b) the increase in legislative district was not expressed in the title of
the bill; and
(c) the addition of another legislative district in Makati is not in accord
with Section 5 (3), Article VI of the Constitution for as of the latest
survey (1990 census), the population of Makati stands at only
450,000.
G.R. No. 118627 was filed by the petitioner John H. Osmea as senator, taxpayer, and concerned
citizen. Petitioner assails section 52 of R.A. No. 7854 as unconstitutional on the same grounds as
aforestated.
We find no merit in the petitions.
I
Section 2, Article I of R.A. No. 7854 delineated the land areas of the proposed city of Makati, thus:
Sec. 2. The City of Makati. The Municipality of Makati shall be converted into a
highly urbanized city to be known as the City of Makati, hereinafter referred to as the
City, which shall comprise the present territory of the Municipality of Makati in
Metropolitan Manila Area over which it has jurisdiction bounded on the northeast by
Pasig River and beyond by the City of Mandaluyong and the Municipality of Pasig; on
the southeast by the municipalities of Pateros and Taguig; on the southwest by the
City of Pasay and the Municipality of Taguig; and, on the northwest, by the City of
Manila.
The foregoing provision shall be without prejudice to the resolution by the appropriate
agency or forum of existing boundary disputes or cases involving questions of
territorial jurisdiction between the City of Makati and the adjoining local government
units. (Emphasis supplied)
In G.R. No. 118577, petitioners claim that this delineation violates sections 7 and 450 of the Local
Government Code which require that the area of a local government unit should be made by metes
and bounds with technical descriptions.
2

The importance of drawing with precise strokes the territorial boundaries of a local unit of
government cannot be overemphasized. The boundaries must be clear for they define the limits of
the territorial jurisdiction of a local government unit. It can legitimately exercise powers of
government only within the limits, its acts are ultra vires. Needless to state, any uncertainty in the
boundaries of local government units will sow costly conflicts in the exercise of governmental powers
which ultimately will prejudice the people's welfare. This is the evil sought to avoided by the Local
Government Code in requiring that the land area of a local government unit must be spelled out in
metes and bounds, with technical descriptions.
Given the facts of the cases at bench, we cannot perceive how this evil can be brought about by the
description made in section 2 of R.A. No. 7854, Petitioners have not demonstrated that the
delineation of the land area of the proposed City of Makati will cause confusion as to its boundaries.
We note that said delineation did not change even by an inch the land area previously covered by
Makati as a municipality. Section 2 did not add, subtract, divide, or multiply the established land area
of Makati. In language that cannot be any clearer, section 2 stated that, the city's land area "shall
comprise the present territory of the municipality."
The deliberations of Congress will reveal that there is a legitimate reason why the land area of the
proposed City of Makati was not defined by metes and bounds, with technical descriptions. At the
time of the consideration of R.A. No. 7854, the territorial dispute between the municipalities of Makati
and Taguig over Fort Bonifacio was under court litigation. Out of a becoming sense of respect to co-
equal department of government, legislators felt that the dispute should be left to the courts to
decide. They did not want to foreclose the dispute by making a legislative finding of fact which could
decide the issue. This would have ensued if they defined the land area of the proposed city by its
exact metes and bounds, with technical descriptions.
3
We take judicial notice of the fact that Congress
has also refrained from using the metes and bounds description of land areas of other local government
units with unsettled boundary disputes.
4

We hold that the existence of a boundary dispute does not per se present an insurmountable
difficulty which will prevent Congress from defining with reasonable certitude the territorial
jurisdiction of a local government unit. In the cases at bench, Congress maintained the existing
boundaries of the proposed City of Makati but as an act of fairness, made them subject to the
ultimate resolution by the courts. Considering these peculiar circumstances, we are not prepared to
hold that section 2 of R.A. No. 7854 is unconstitutional. We sustain the submission of the Solicitor
General in this regard, viz.:
Going now to Sections 7 and 450 of the Local Government Code, it is beyond cavil
that the requirement stated therein, viz.: "the territorial jurisdiction of newly created or
converted cities should be described by meted and bounds, with technical
descriptions" was made in order to provide a means by which the area of said
cities may be reasonably ascertained. In other words, the requirement on metes and
bounds was meant merely as tool in the establishment of local government units. It is
not an end in itself. Ergo, so long as the territorial jurisdiction of a city may be
reasonably ascertained, i.e., by referring to common boundaries with neighboring
municipalities, as in this case, then, it may be concluded that the legislative intent
behind the law has been sufficiently served.
Certainly, Congress did not intends that laws creating new cities must contain therein
detailed technical descriptions similar to those appearing in Torrens titles, as
petitioners seem to imply. To require such description in the law as a condition sine
qua non for its validity would be to defeat the very purpose which the Local
Government Code to seeks to serve. The manifest intent of the Code is to empower
local government units and to give them their rightful due. It seeks to make local
governments more responsive to the needs of their constituents while at the same
time serving as a vital cog in national development. To invalidate R.A. No. 7854 on
the mere ground that no cadastral type of description was used in the law would
serve the letter but defeat the spirit of the Code. It then becomes a case of the
master serving the slave, instead of the other way around. This could not be the
intendment of the law.
Too well settled is the rule that laws must be enforced when ascertained, although it
may not be consistent with the strict letter of the statute. Courts will not follow the
letter of the statute when to do so would depart from the true intent of the legislature
or would otherwise yield conclusions inconsistent with the general purpose of the act.
(Torres v. Limjap, 56 Phil., 141; Taada v. Cuenco, 103 Phil. 1051; Hidalgo v.
Hidalgo, 33 SCRA 1105). Legislation is an active instrument of government, which,
for purposes of interpretation, means that laws have ends to achieve, and statutes
should be so construed as not to defeat but to carry out such ends and purposes
(Bocolbo v. Estanislao, 72 SCRA 520). The same rule must indubitably apply to the
case at bar.
II
Petitioners in G.R. No. 118577 also assail the constitutionality of section 51, Article X of R.A. No.
7854. Section 51 states:
Sec. 51. Officials of the City of Makati. The represent elective officials of the
Municipality of Makati shall continue as the officials of the City of Makati and shall
exercise their powers and functions until such time that a new election is held and
the duly elected officials shall have already qualified and assume their
offices: Provided, The new city will acquire a new corporate existence. The
appointive officials and employees of the City shall likewise continues exercising their
functions and duties and they shall be automatically absorbed by the city government
of the City of Makati.
They contend that this section collides with section 8, Article X and section 7, Article VI of the
Constitution which provide:
Sec. 8. The term of office of elective local officials, except barangay officials, which
shall be determined by law, shall be three years and no such official shall serve for
more than three consecutive terms. Voluntary renunciation of the office for any length
of time shall not be considered as an interruption in the continuity of his service for
the full term for which he was elected.
xxx xxx xxx
Sec. 7. The Members of the House of Representatives shall be elected for a term of
three years which shall begin, unless otherwise provided by law, at noon on the
thirtieth day of June next following their election.
No Member of the House of Representatives shall serve for more than three
consecutive terms. Voluntary renunciation of the office for any length of time shall not
be considered as an interruption in the continuity of his service for the full term for
which he was elected.
Petitioners stress that under these provisions, elective local officials, including Members of the
House of Representative, have a term of three (3) years and are prohibited from serving for more
than three (3) consecutive terms. They argue that by providing that the new city shall acquire a new
corporate existence, section 51 of R.A. No. 7854 restarts the term of the present municipal elective
officials of Makati and disregards the terms previously served by them. In particular, petitioners point
that section 51 favors the incumbent Makati Mayor, respondent Jejomar Binay, who has already
served for two (2) consecutive terms. They further argue that should Mayor Binay decide to run and
eventually win as city mayor in the coming elections, he can still run for the same position in 1998
and seek another three-year consecutive term since his previous three-year consecutive term
as municipal mayorwould not be counted. Thus, petitioners conclude that said section 51 has been
conveniently crafted to suit the political ambitions of respondent Mayor Binay.
We cannot entertain this challenge to the constitutionality of section 51. The requirements before a
litigant can challenge the constitutionality of a law are well delineated. They are: 1) there must be an
actual case or controversy; (2) the question of constitutionality must be raised by the proper party;
(3) the constitutional question must be raised at the earliest possible opportunity; and (4) the
decision on the constitutional question must be necessary to the determination of the case itself.
5

Petitioners have far from complied with these requirements. The petition is premised on the
occurrence of many contingent events, i.e., that Mayor Binay will run again in this coming mayoralty
elections; that he would be re-elected in said elections; and that he would seek re-election for the
same position in the 1998 elections. Considering that these contingencies may or may not happen,
petitioners merely pose a hypothetical issue which has yet to ripen to an actual case or controversy.
Petitioners who are residents of Taguig (except Mariano) are not also the proper parties to raise this
abstract issue. Worse, they hoist this futuristic issue in a petition for declaratory relief over which this
Court has no jurisdiction.
III
Finally, petitioners in the two (2) cases at bench assail the constitutionality of section 52, Article X of
R.A. No. 7854. Section 52 of the Charter provides:
Sec. 52. Legislative Districts. Upon its conversion into a highly-urbanized city,
Makati shall thereafter have at least two (2) legislative districts that shall initially
correspond to the two (2) existing districts created under Section 3(a) of Republic
Act. No. 7166 as implemented by the Commission on Elections to commence at the
next national elections to be held after the effectivity of this Act. Henceforth,
barangays Magallanes, Dasmarias and Forbes shall be with the first district, in lieu
of Barangay Guadalupe-Viejo which shall form part of the second district. (emphasis
supplied)
They contend. that the addition of another legislative district in Makati is unconstitutional for: (1)
reapportionment
6
cannot made by a special law, (2) the addition of a legislative district is not expressed
in the title of the bill
7
and (3) Makati's population, as per the 1990 census, stands at only four hundred fifty
thousand (450,000).
These issues have been laid to rest in the recent case of Tobias v. Abalos.
8
In said case, we ruled
that reapportionment of legislative districts may be made through a special law, such as in the charter of a
new city. The Constitution
9
clearly provides that Congress shall be composed of not more than two
hundred fifty (250) members, unless otherwise fixed by law. As thus worded, the Constitution did not
preclude Congress from increasing its membership by passing a law, other than a general
reapportionment of the law. This is its exactly what was done by Congress in enacting R.A. No. 7854 and
providing for an increase in Makati's legislative district. Moreover, to hold that reapportionment can only
be made through a general apportionment law, with a review of all the legislative districts allotted to each
local government unit nationwide, would create an inequitable situation where a new city or province
created by Congress will be denied legislative representation for an indeterminate period of time.
10
The
intolerable situations will deprive the people of a new city or province a particle of their
sovereignty.
11
Sovereignty cannot admit of any kind of subtraction. It is indivisible. It must be forever
whole or it is not sovereignty.
Petitioners cannot insist that the addition of another legislative district in Makati is not in accord with
section 5(3), Article VI
12
of the Constitution for as of the latest survey (1990 census), the population of
Makati stands at only four hundred fifty thousand (450,000).
13
Said section provides, inter alia, that a city
with a population of at least two hundred fifty thousand (250,000) shall have at least one representative.
Even granting that the population of Makati as of the 1990 census stood at four hundred fifty thousand
(450,000), its legislative district may still be increased since it has met the minimum population
requirement of two hundred fifty thousand (250,000). In fact, section 3 of the Ordinance appended to the
Constitution provides that a city whose population has increased to more than two hundred fifty thousand
(250,000) shall be entitled to at least one congressional representative.
14

Finally, we do not find merit in petitioners' contention that the creation of an additional legislative
district in Makati should have been expressly stated in the title of the bill. In the same case of Tobias
v. Abalos, op cit., we reiterated the policy of the Court favoring a liberal construction of the "one title-
one subject" rule so as not to impede legislation. To be sure, with Constitution does not command
that the title of a law should exactly mirror, fully index, or completely catalogue all its details. Hence,
we ruled that "it should be sufficient compliance if the title expresses the general subject and all the
provisions are germane to such general subject."
WHEREFORE, the petitions are hereby DISMISSED for lack of merit No costs.
SO ORDERED.
Narvasa, C.J., Feliciano, Padilla, Bidin, Regalado, Romero, Bellosillo, Melo, Quiason, Vitug,
Kapunan, Mendoza and Francisco, JJ., concur.



Separate Opinions

DAVIDE, JR., J ., concurring:
I concur in the well written opinion of Mr. Justice Reynato S. Puno. I wish, however, to add a few
observations.
I.
Section 10, Article X of the Constitution provides that "[n]o province, city, municipality or barangay
may be created, divided, merged, abolished, or its boundary substantially altered, except in
accordance with the criteria established in the local government code and subject to the approval by
a majority of the votes cast in a plebiscite in the political units directly affected." These criteria are
now set forth in Section 7 of the Local Government Code of 1991 (R.A. No. 7160). One of these is
that the territorial jurisdiction of the local government unit to be created or converted should be
properly identified by metes and bounds with technical descriptions.
The omission of R.A. No. 7854 (An Act Converting the Municipality of Makati Into a Highly Urbanized
City to be Known as the City of Makati) to describe the territorial boundaries of the city by metes and
bounds does not make R.A. No. 7854 unconstitutional or illegal. The Constitution does not provide
for a description by metes and bounds as a condition sine qua non for the creation of a local
government unit or its conversion from one level to another. The criteria provided for in Section 7 of
R.A. No. 7854 are not absolute, for, as a matter of fact, the section starts with the clause "as a
general rule." The petitioners' reliance on Section 450 of R.A. No. 7160 is unavailing Said section
only applies to the conversion of a municipality or a cluster of barangays into a COMPONENT CITY,
not a highly urbanized city. It pertinently reads as follows:
Sec. 450. Requisite for creation. (a) A municipality or a cluster of barangays may
be converted into a component city if it has an average annual income, as certified
by the Department of Finance, of at least Twenty million pesos (P20,000,000.00) for
the last two (2) consecutive years based on 1991 constant prices, and if it has either
of the following requisites:
xxx xxx xxx
(b) The territorial jurisdiction of a newly created city shall be properly identified by
metes and bounds. . . .
The constitution classifies cities as either highly urbanized or component. Section 12 of Article X
thereof provides:
Sec. 12. Cities that are highly urbanized, as determined by law, and component cities
whose charters prohibit their voters from voting for provincial elective officials, shall
be independent of the province. The voters of component cities within a province,
whose charters contain no such prohibition, shall not be deprived of their right to vote
for elective provincial officials.
And Section 451 of R.A. No. 7160 provides:
Sec. 451. Cities Classified. A city may either be component or highly
urbanized: Provided, however, That the criteria established in this Code shall not
affect the classification and corporate status of existing cities.
Independent component cities are those component cities whose charters prohibit
their voters from voting for provincial elective officials. Independent component cities
shall be independent of the province.
II.
Strictly speaking, the increase in the number of legislative seats for the City of Makati provided for in
R.A. No. 7854 is not an increase justified by the clause unless otherwise fixed by law in paragraph 1,
Section 5, Article VI of the Constitution. That clause contemplates of the reapportionment mentioned
in the succeeding paragraph (4) of the said Section which reads in full as follows:
Within three years following the return of every census, the Congress shall make a
reapportionment of legislative districts based on the standards provided in this
section.
In short, the clause refers to a general reapportionment law.
The increase under R.A. No. 7854 is a permissible increase under Sections 1 and 3 of the
Ordinance appended to the Constitution which reads:
Sec. 1. For purposes of the election of Members of the House of Representatives of
the First Congress of the Philippines under the Constitution proposed by the 1986
Constitutional Commission and subsequent elections, and until otherwise provided
by law, the Members thereof shall be elected from legislative districts apportioned
among the provinces, cities, and the Metropolitan Manila Area as follows:
METROPOLITAN MANILA AREA
xxx xxx xxx
MAKATI one (1)
xxx xxx xxx
Sec. 3. Any province that may hereafter be created, or any city whose population
may hereafter increase to more than two hundred fifty thousand shall be entitled in
the immediately following election to at least one Member or such number of
Members as it may be entitled to on the basis of the number of its inhabitants and
according to the standards set forth in paragraph (3), Section 5 of Article VI of the
Constitution. The number of Members apportioned to the province out of which such
new province was created, or where the city, whose population has so increased, is
geographically located shall be correspondingly adjusted by the Commission on
Elections but such adjustment shall not be made within one hundred and twenty days
before the election. (Emphases supplied)


Separate Opinions
DAVIDE, JR., J ., concurring:
I concur in the well written opinion of Mr. Justice Reynato S. Puno. I wish, however, to add a few
observations.
I.
Section 10, Article X of the Constitution provides that "[n]o province, city, municipality or barangay
may be created, divided, merged, abolished, or its boundary substantially altered, except in
accordance with the criteria established in the local government code and subject to the approval by
a majority of the votes cast in a plebiscite in the political units directly affected." These criteria are
now set forth in Section 7 of the Local Government Code of 1991 (R.A. No. 7160). One of these is
that the territorial jurisdiction of the local government unit to be created or converted should be
properly identified by metes and bounds with technical descriptions.
The omission of R.A. No. 7854 (An Act Converting the Municipality of Makati Into a Highly Urbanized
City to be Known as the City of Makati) to describe the territorial boundaries of the city by metes and
bounds does not make R.A. No. 7854 unconstitutional or illegal. The Constitution does not provide
for a description by metes and bounds as a condition sine qua non for the creation of a local
government unit or its conversion from one level to another. The criteria provided for in Section 7 of
R.A. No. 7854 are not absolute, for, as a matter of fact, the section starts with the clause "as a
general rule." The petitioners' reliance on Section 450 of R.A. No. 7160 is unavailing Said section
only applies to the conversion of a municipality or a cluster of barangays into a COMPONENT CITY,
not a highly urbanized city. It pertinently reads as follows:
Sec. 450. Requisite for creation. (a) A municipality or a cluster of barangays may
be converted into a component city if it has an average annual income, as certified
by the Department of Finance, of at least Twenty million pesos (P20,000,000.00) for
the last two (2) consecutive years based on 1991 constant prices, and if it has either
of the following requisites:
xxx xxx xxx
(b) The territorial jurisdiction of a newly created city shall be properly identified by
metes and bounds. . . .
The constitution classifies cities as either highly urbanized or component. Section 12 of Article X
thereof provides:
Sec. 12. Cities that are highly urbanized, as determined by law, and component cities
whose charters prohibit their voters from voting for provincial elective officials, shall
be independent of the province. The voters of component cities within a province,
whose charters contain no such prohibition, shall not be deprived of their right to vote
for elective provincial officials.
And Section 451 of R.A. No. 7160 provides:
Sec. 451. Cities Classified. A city may either be component or highly
urbanized: Provided, however, That the criteria established in this Code shall not
affect the classification and corporate status of existing cities.
Independent component cities are those component cities whose charters prohibit
their voters from voting for provincial elective officials. Independent component cities
shall be independent of the province.
II.
Strictly speaking, the increase in the number of legislative seats for the City of Makati provided for in
R.A. No. 7854 is not an increase justified by the clause unless otherwise fixed by law in paragraph 1,
Section 5, Article VI of the Constitution. That clause contemplates of the reapportionment mentioned
in the succeeding paragraph (4) of the said Section which reads in full as follows:
Within three years following the return of every census, the Congress shall make a
reapportionment of legislative districts based on the standards provided in this
section.
In short, the clause refers to a general reapportionment law.
The increase under R.A. No. 7854 is a permissible increase under Sections 1 and 3 of the
Ordinance appended to the Constitution which reads:
Sec. 1. For purposes of the election of Members of the House of Representatives of
the First Congress of the Philippines under the Constitution proposed by the 1986
Constitutional Commission and subsequent elections, and until otherwise provided
by law, the Members thereof shall be elected from legislative districts apportioned
among the provinces, cities, and the Metropolitan Manila Area as follows:
METROPOLITAN MANILA AREA
xxx xxx xxx
MAKATI one (1)
xxx xxx xxx
Sec. 3. Any province that may hereafter be created, or any city whose population
may hereafter increase to more than two hundred fifty thousand shall be entitled in
the immediately following election to at least one Member or such number of
Members as it may be entitled to on the basis of the number of its inhabitants and
according to the standards set forth in paragraph (3), Section 5 of Article VI of the
Constitution. The number of Members apportioned to the province out of which such
new province was created, or where the city, whose population has so increased, is
geographically located shall be correspondingly adjusted by the Commission on
Elections but such adjustment shall not be made within one hundred and twenty days
before the election. (Emphases supplied)
Footnotes
1 R.A. No. 7854 is a consolidation of House Bill No. 12240 sponsored by
Congressman Joker Arroyo and Senate Bill No. 1244 sponsored by Senator Vicente
Sotto III.
2 Sec. 7. Creation and Conversion. As a general rule, the creation of a local
government unit or its conversion from one level to another level shall be based on
verifiable indicators of viability and projected capacity to provide services, to wit:
xxx xxx xxx
(c) Land Area. It must be contiguous, unless it comprises two (2) or more islands
or is separated by a local government unit independent of the others; properly
identified by metes and bounds with technical descriptions and sufficient to provide
for such basic services and facilities to meet the requirements of its populace.
Compliance with the foregoing indicators shall be attested to by the Department of
Finance the National Statistics Office (NSO), and the Lands Management Bureau
(LMB) of the Department of Environment and Natural Resources (DENR).
xxx xxx xxx
Sec. 450. Requisites for Creation. . . .
(b) The territorial jurisdiction of a newly-created city shall be properly identified by
metes and bounds. . . .
3 August 18, 1994, Senate Deliberations on H.B. No. 12240, pp. 23-28.
4 Ibid, citing as example the City of Mandaluyong.
5 Dumlao v. COMELEC, 95 SCRA 392 (19180); Cruz, Constitutional Law, 1991 ed.,
p. 24.
6 Section 5(4), Article VI of the Constitution provides:
(4) Within three years following the return of every census, the Congress shall make
a reapportionment of legislative districts based on the standards provided in this
section.
7 Section 26(1), Article VI of the Constitution provides:
Sec. 26 (1) Every bill passed by the Congress shall, embrace only one subject which
shall be expressed in the title thereof.
8 G.R. No. 114783, December 8, 1994.
9 Section 5(1), Article VI.
10 In this connection, we take judicial notice of the fact that since 1986 up to this
time, Congress has yet to pass a general reapportionment law.
11 Section 1, Article II provides that "the Philippines is a democratic and republican
state. Sovereignty resides in the people and all government authority from them."
12 Sec. 5. . . .
(3) Each legislative district shall comprise, as far as practicable, contiguous,
compact, and adjacent territory. Each city with a population of at least two hundred
fifty thousand, or each province, shall have at least one representative.
xxx xxx xxx
13 As per the certificate issued by Administration Tomas Africa of the National
Census and Statistics Office, the population of Makati as of 1994 stood at 508,174;
August 4, 1994, Senate Deliberations on House Bill No. 12240 (converting Makati
into a highly urbanized city), p. 15.
14 Sec. 3 provides: "Any province that may hereafter be created, or any city whose
population may hereafter increase to more than two hundred fifty thousand shall be
entitled in the immediately following election to at least one Member or such number
of Members as it may be entitled to on the basis of the number of its inhabitants and
according to the standards set forth in paragraph (3), Section 5 of Article VI of the
Constitution. The number of Members apportioned to the province out of which such
new province was created or where the city, whose population has so increased, is
geographically located shall be correspondingly adjusted by the Commission on
Elections but such adjustment shall not be made within one hundred, and twenty
days before the election."

ANTONIETTE V.C. MONTESCLAROS, MARICEL CARANZO,
JOSEPHINE ATANGAN, RONALD ATANGAN and CLARIZA
DECENA, and OTHER YOUTH OF THE LAND SIMILARLY
SITUATED, petitioners, vs. COMMISSION ON ELECTIONS,
DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT,
DEPARTMENT OF BUDGET AND MANAGEMENT, EXECUTIVE
SECRETARY of the OFFICE OF THE PRESIDENT, SENATOR
FRANKLIN DRILON in his capacity as Senate President and
SENATOR AQUILINO PIMENTEL in his capacity as Minority
Leader of the Senate of the Philippines, CONGRESSMAN JOSE
DE VENECIA in his capacity as Speaker, CONGRESSMAN
AGUSTO L. SYJOCO in his capacity as Chairman of the
Committee on Suffrage and Electoral Reforms, and
CONGRESSMAN EMILIO C. MACIAS II in his capacity as
Chairman of the Committee on Local Government of the House
of Representatives, THE PRESIDENT OF THE PAMBANSANG
KATIPUNAN NG MGA SANGGUNIANG KABATAAN, AND ALL
THEIR AGENTS AND REPRESENTATIVES, respondents.
D E C I S I O N
CARPIO, J .:
The Case
Before us is a petition for certiorari, prohibition and mandamus with prayer for a
temporary restraining order or preliminary injunction. The petition seeks to prevent the
postponement of the Sangguniang Kabataan (SK for brevity) elections originally
scheduled last May 6, 2002. The petition also seeks to prevent the reduction of the age
requirement for membership in the SK.
Petitioners, who are all 20 years old, filed this petition as a taxpayers and class suit,
on their own behalf and on behalf of other youths similarly situated. Petitioners claim
that they are in danger of being disqualified to vote and be voted for in the SK elections
should the SK elections on May 6, 2002 be postponed to a later date. Under the Local
Government Code of 1991 (R.A. No. 7160), membership in the SK is limited to youths
at least 15 but not more than 21 years old.
Petitioners allege that public respondents connived, confederated and conspired
to postpone the May 6, 2002 SK elections and to lower the membership age in the SK
to at least 15 but less than 18 years of age. Petitioners assail the alleged conspiracy
because youths at least 18 but not more than 21 years old will be summarily and
unduly dismembered, unfairly discriminated, unnecessarily disenfranchised, unjustly
disassociated and obnoxiously disqualified from the SK organization.
[1]

Thus, petitioners pray for the issuance of a temporary restraining order or
preliminary injunction -
a) To prevent, annul or declare unconstitutional any law, decree, Comelec
resolution/directive and other respondents issuances, orders and actions and
the like in postponing the May 6, 2002 SK elections.
b) To command the respondents to continue the May 6, 2002 SK elections set
by the present law and in accordance with Comelec Resolutions No. 4713 and
4714 and to expedite the funding of the SK elections.
c) In the alternative, if the SK elections will be postponed for whatever reason,
there must be a definite date for said elections, for example, July 15, 2002,
and the present SK membership, except those incumbent SK officers who
were elected on May 6, 1996, shall be allowed to run for any SK elective
position even if they are more than 21 years old.
d) To direct the incumbent SK officers who are presently representing the SK
in every sanggunian and the NYC to vacate their post after the barangay
elections.
[2]

The Facts
The SK is a youth organization originally established by Presidential Decree No.
684 as the Kabataang Barangay (KB for brevity). The KB was composed of all
barangay residents who were less than 18 years old, without specifying the minimum
age. The KB was organized to provide its members with the opportunity to express their
views and opinions on issues of transcendental importance.
[3]

The Local Government Code of 1991 renamed the KB to SK and limited SK
membership to those youths at least 15 but not more than 21 years of age.
[4]
The SK
remains as a youth organization in every barangay tasked to initiate programs to
enhance the social, political, economic, cultural, intellectual, moral, spiritual, and
physical development of the youth.
[5]
The SK in every barangay is composed of a
chairperson and seven members, all elected by the Katipunan ng
Kabataan. The Katipunan ng Kabataan in every barangay is composed of all citizens
actually residing in the barangay for at least six months and who meet the membership
age requirement.
The first SK elections took place on December 4, 1992. RA No. 7808 reset the SK
elections to the first Monday of May of 1996 and every three years thereafter. RA No.
7808 mandated the Comelec to supervise the conduct of the SK elections under rules
the Comelec shall promulgate. Accordingly, the Comelec on December 4, 2001 issued
Resolution Nos. 4713
[6]
and 4714
[7]
to govern the SK elections on May 6, 2002.
On February 18, 2002, petitioner Antoniette V.C. Montesclaros (Montesclaros for
brevity) sent a letter
[8]
to the Comelec, demanding that the SK elections be held as
scheduled on May 6, 2002. Montesclaros also urged the Comelec to respond to her
letter within 10 days upon receipt of the letter, otherwise, she will seek judicial relief.
On February 20, 2002, Alfredo L. Benipayo (Chairman Benipayo for brevity), then
Comelec Chairman, wrote identical letters to the Speaker of the House
[9]
and the Senate
President
[10]
about the status of pending bills on the SK and Barangay elections. In his
letters, the Comelec Chairman intimated that it was operationally very difficult to hold
both elections simultaneously in May 2002. Instead, the Comelec Chairman expressed
support for the bill of Senator Franklin Drilon that proposed to hold the Barangay
elections in May 2002 and postpone the SK elections to November 2002.
Ten days lapsed without the Comelec responding to the letter of
Montesclaros. Subsequently, petitioners received a copy of Comelec En
Banc Resolution No. 4763
[11]
dated February 5, 2002 recommending to Congress the
postponement of the SK elections to November 2002 but holding the Barangay
elections in May 2002 as scheduled.
[12]

On March 6, 2002, the Senate and the House of Representatives passed their
respective bills postponing the SK elections. On March 11, 2002, the Bicameral
Conference Committee (Bicameral Committee for brevity) of the Senate and the
House came out with a Report
[13]
recommending approval of the reconciled bill
consolidating Senate Bill No. 2050
[14]
and House Bill No. 4456.
[15]
The Bicameral
Committees consolidated bill reset the SK and Barangay elections to July 15, 2002 and
lowered the membership age in the SK to at least 15 but not more than 18 years of age.
On March 11, 2002, petitioners filed the instant petition.
On March 11, 2002, the Senate approved the Bicameral Committees consolidated
bill and on March 13, 2002, the House of Representatives approved the same. The
President signed the approved bill into law on March 19, 2002.
The Issues
Petitioners
[16]
raise the following grounds in support of their petition:
I.
RESPONDENTS ACTED WHIMSICALLY, ILLEGALLY AND
UNCONSTITUTIONALLY THUS CONSTITUTED (SIC) WITH GRAVE
ABUSE OF DISCRETION, AMOUNTING TO LACK OR EXCESS OF
JURISDICTION WHEN THEY INTENDED TO POSTPONE THE SK
ELECTIONS.
II.
RESPONDENTS ACTED WHIMSICALLY, ILLEGALLY AND
UNCONSTITUTIONALLY THUS CONSTITUTED (SIC) WITH GRAVE
ABUSE OF DISCRETION, AMOUNTING TO LACK OR EXCESS OF
JURISDICTION WHEN THEY INTENDED TO DISCRIMINATE,
DISENFRANCHISE, SINGLE OUT AND DISMEMBER THE SK MEMBERS
WHO ARE 18 BUT NOT LESS
[17]
(SIC) THAN 21 YEARS OLD COMPOSED
OF ABOUT 7 MILLION YOUTH.
III.
RESPONDENTS ACTED WHIMSICALLY, ILLEGALLY AND
UNCONSTITUTIONALLY THUS CONSTITUTED (SIC) WITH GRAVE
ABUSE OF DISCRETION, AMOUNTING TO LACK OR EXCESS OF
JURISDICTION WHEN THEY WILLFULLY FAILED TO FUND THE SK
ELECTION PURPORTEDLY TO POSTPONE THE SAME IN ORDER TO
IMPLEMENT THEIR ILLEGAL SCHEME AND MACHINATION IN SPITE OF
THE FACT THAT THERE ARE AVAILABLE FUNDS FOR THE PURPOSE.
IV.
THE INCUMBENT SK OFFICERS WANTED TO PERPETUALLY SIT ON
THEIR RESPECTIVE OFFICES CONTRARY TO THE ENVISION (SIC) OF
THE CREATION OF THE SK ORGANIZATION, HENCE, IN VIOLATION OF
LAW AND CONSTITUTION.
[18]

The Courts Ruling
The petition is bereft of merit.
At the outset, the Court takes judicial notice of the following events that have
transpired since petitioners filed this petition:
1. The May 6, 2002 SK elections and May 13, 2002 Barangay elections were not held
as scheduled.
2. Congress enacted RA No. 9164
[19]
which provides that voters and candidates for the
SK elections must be at least 15 but less than 18 years of age on the day of the
election.
[20]
RA No. 9164 also provides that there shall be a synchronized SK and
Barangay elections on July 15, 2002.
3. The Comelec promulgated Resolution No. 4846, the rules and regulations for the
conduct of the July 15, 2002 synchronized SK and Barangay elections.
Petitioners, who all claim to be 20 years old, argue that the postponement of the
May 6, 2002 SK elections disenfranchises them, preventing them from voting and being
voted for in the SK elections. Petitioners theory is that if the SK elections were
postponed to a date later than May 6, 2002, the postponement would disqualify from SK
membership youths who will turn 21 years old between May 6, 2002 and the date of the
new SK elections. Petitioners claim that a reduction in the SK membership age to 15
but less than 18 years of age from the then membership age of 15 but not more than 21
years of age would disqualify about seven million youths. The public respondents
failure to hold the elections on May 6, 2002 would prejudice petitioners and other youths
similarly situated.
Thus, petitioners instituted this petition to: (1) compel public respondents to hold the
SK elections on May 6, 2002 and should it be postponed, the SK elections should be
held not later than July 15, 2002; (2) prevent public respondents from passing laws and
issuing resolutions and orders that would lower the membership age in the SK; and (3)
compel public respondents to allow petitioners and those who have turned more than 21
years old on May 6, 2002 to participate in any re-scheduled SK elections.
The Courts power of judicial review may be exercised in constitutional cases only if
all the following requisites are complied with, namely: (1) the existence of an actual and
appropriate case or controversy; (2) a personal and substantial interest of the party
raising the constitutional question; (3) the exercise of judicial review is pleaded at the
earliest opportunity; and (4) the constitutional question is the lis mota of the case.
[21]

In the instant case, there is no actual controversy requiring the exercise of the
power of judicial review. While seeking to prevent a postponement of the May 6, 2002
SK elections, petitioners are nevertheless amenable to a resetting of the SK elections to
any date not later than July 15, 2002. RA No. 9164 has reset the SK elections to July
15, 2002, a date acceptable to petitioners. With respect to the date of the SK elections,
there is therefore no actual controversy requiring judicial intervention.
Petitioners prayer to prevent Congress from enacting into law a proposed bill
lowering the membership age in the SK does not present an actual justiciable
controversy. A proposed bill is not subject to judicial review because it is not a law. A
proposed bill creates no right and imposes no duty legally enforceable by the Court. A
proposed bill, having no legal effect, violates no constitutional right or duty. The Court
has no power to declare a proposed bill constitutional or unconstitutional because that
would be in the nature of rendering an advisory opinion on a proposed act of
Congress. The power of judicial review cannot be exercised in vacuo.
[22]
The second
paragraph of Section 1, Article VIII of the Constitution states
Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and
enforceable, and to determine whether or not there has been a grave abuse
of discretion amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of the Government. (Emphasis supplied)
Thus, there can be no justiciable controversy involving the constitutionality of a
proposed bill. The Court can exercise its power of judicial review only after a law is
enacted, not before.
Under the separation of powers, the Court cannot restrain Congress from passing
any law, or from setting into motion the legislative mill according to its internal
rules. Thus, the following acts of Congress in the exercise of its legislative powers are
not subject to judicial restraint: the filing of bills by members of Congress, the approval
of bills by each chamber of Congress, the reconciliation by the Bicameral Committee of
approved bills, and the eventual approval into law of the reconciled bills by each
chamber of Congress. Absent a clear violation of specific constitutional limitations or of
constitutional rights of private parties, the Court cannot exercise its power of judicial
review over the internal processes or procedures of Congress.
[23]

The Court has also no power to dictate to Congress the object or subject of bills that
Congress should enact into law. The judicial power to review the constitutionality of
laws does not include the power to prescribe to Congress what laws to enact. The
Court has no power to compel Congress by mandamus to enact a law allowing
petitioners, regardless of their age, to vote and be voted for in the July 15, 2002 SK
elections. To do so would destroy the delicate system of checks and balances finely
crafted by the Constitution for the three co-equal, coordinate and independent branches
of government.
Under RA No. 9164, Congress merely restored the age requirement in PD No. 684,
the original charter of the SK, which fixed the maximum age for membership in the SK
to youths less than 18 years old. Petitioners do not have a vested right to the
permanence of the age requirement under Section 424 of the Local Government Code
of 1991. Every law passed by Congress is always subject to amendment or repeal by
Congress. The Court cannot restrain Congress from amending or repealing laws, for
the power to make laws includes the power to change the laws.
[24]

The Court cannot also direct the Comelec to allow over-aged voters to vote or be
voted for in an election that is limited under RA No. 9164 to youths at least 15 but less
than 18 years old. A law is needed to allow all those who have turned more than 21
years old on or after May 6, 2002 to participate in the July 15, 2002 SK
elections. Youths from 18 to 21 years old as of May 6, 2002 are also no longer SK
members, and cannot participate in the July 15, 2002 SK elections. Congress will have
to decide whether to enact an amendatory law. Petitioners remedy is legislation, not
judicial intervention.
Petitioners have no personal and substantial interest in maintaining this suit. A
party must show that he has been, or is about to be denied some personal right or
privilege to which he is lawfully entitled.
[25]
A party must also show that he has a real
interest in the suit. By real interest is meant a present substantial interest, as
distinguished from a mere expectancy or future, contingent, subordinate, or
inconsequential interest.
[26]

In the instant case, petitioners seek to enforce a right originally conferred by law on
those who were at least 15 but not more than 21 years old. Now, with the passage of
RA No. 9164, this right is limited to those who on the date of the SK elections are at
least 15 but less than 18 years old. The new law restricts membership in the SK to this
specific age group. Not falling within this classification, petitioners have ceased to be
members of the SK and are no longer qualified to participate in the July 15, 2002 SK
elections. Plainly, petitioners no longer have a personal and substantial interest in the
SK elections.
This petition does not raise any constitutional issue. At the time petitioners filed this
petition, RA No. 9164, which reset the SK elections and reduced the age requirement
for SK membership, was not yet enacted into law. After the passage of RA No. 9164,
petitioners failed to assail any provision in RA No. 9164 that could be
unconstitutional. To grant petitioners prayer to be allowed to vote and be voted for in
the July 15, 2002 SK elections necessitates assailing the constitutionality of RA No.
9164. This, petitioners have not done. The Court will not strike down a law unless its
constitutionality is properly raised in an appropriate action and adequately argued.
[27]

The only semblance of a constitutional issue, albeit erroneous, that petitioners raise
is their claim that SK membership is a property right within the meaning of the
Constitution.
[28]
Since certain public offices are reserved for SK officers, petitioners also
claim a constitutionally protected opportunity to occupy these public offices. In
petitioners own words, they and others similarly situated stand to lose their opportunity
to work in the government positions reserved for SK members or officers.
[29]
Under the
Local Government Code of 1991, the president of the federation of SK organizations in
a municipality, city or province is an ex-officio member of the municipal council, city
council or provincial board, respectively.
[30]
The chairperson of the SK in the barangay is
an ex-officio member of the Sangguniang Barangay.
[31]
The president of the national
federation of SK organizations is an ex-officio member of the National Youth
Commission, with rank of a Department Assistant Secretary.
[32]

Congress exercises the power to prescribe the qualifications for SK
membership. One who is no longer qualified because of an amendment in the law
cannot complain of being deprived of a proprietary right to SK membership. Only those
who qualify as SK members can contest, based on a statutory right, any act
disqualifying them from SK membership or from voting in the SK elections. SK
membership is not a property right protected by the Constitution because it is a mere
statutory right conferred by law. Congress may amend at any time the law to change or
even withdraw the statutory right.
A public office is not a property right. As the Constitution expressly states, a
[P]ublic office is a public trust.
[33]
No one has a vested right to any public office, much
less a vested right to an expectancy of holding a public office. In Cornejo v.
Gabriel,
[34]
decided in 1920, the Court already ruled:
Again, for this petition to come under the due process of law prohibition, it
would be necessary to consider an office a property. It is, however, well
settled x x x that a public office is not property within the sense of the
constitutional guaranties of due process of law, but is a public trust or
agency. x x x The basic idea of the government x x x is that of a popular
representative government, the officers being mere agents and not rulers of
the people, one where no one man or set of men has a proprietary or
contractual right to an office, but where every officer accepts office pursuant to
the provisions of the law and holds the office as a trust for the people he
represents. (Emphasis supplied)
Petitioners, who apparently desire to hold public office, should realize from the very
start that no one has a proprietary right to public office. While the law makes an SK
officer an ex-officio member of a local government legislative council, the law does not
confer on petitioners a proprietary right or even a proprietary expectancy to sit in local
legislative councils. The constitutional principle of a public office as a public trust
precludes any proprietary claim to public office. Even the State policy directing equal
access to opportunities for public service
[35]
cannot bestow on petitioners a proprietary
right to SK membership or a proprietary expectancy to ex-officio public offices.
Moreover, while the State policy is to encourage the youths involvement in public
affairs,
[36]
this policy refers to those who belong to the class of people defined as the
youth. Congress has the power to define who are the youth qualified to join the SK,
which itself is a creation of Congress. Those who do not qualify because they are past
the age group defined as the youth cannot insist on being part of the youth. In
government service, once an employee reaches mandatory retirement age, he cannot
invoke any property right to cling to his office. In the same manner, since petitioners
are now past the maximum age for membership in the SK, they cannot invoke any
property right to cling to their SK membership.
The petition must also fail because no grave abuse of discretion attended the
postponement of the SK elections. RA No. 9164 is now the law that prescribes the
qualifications of candidates and voters for the SK elections. This law also fixes the date
of the SK elections. Petitioners are not even assailing the constitutionality of RA No.
9164. RA No. 9164 enjoys the presumption of constitutionality and will apply to the July
15, 2002 SK elections.
Petitioners have not shown that the Comelec acted illegally or with grave abuse of
discretion in recommending to Congress the postponement of the SK elections. The
very evidence relied upon by petitioners contradict their allegation of illegality. The
evidence consist of the following: (1) Comelec en banc Resolution No. 4763 dated
February 5, 2002 that recommended the postponement of the SK elections to 2003; (2)
the letter of then Comelec Chairman Benipayo addressed to the Speaker of the House
of Representatives and the President of the Senate; and (3) the Conference Committee
Report consolidating Senate Bill No. 2050 and House Bill No. 4456.
The Comelec exercised its power and duty to enforce and administer all laws and
regulations relative to the conduct of an election, plebiscite, initiative, referendum and
recall
[37]
and to recommend to Congress effective measures to minimize election
spending.
[38]
The Comelecs acts enjoy the presumption of regularity in the performance
of official duties.
[39]
These acts cannot constitute proof, as claimed by petitioners, that
there exists a connivance and conspiracy (among) respondents in contravention of the
present law. As the Court held in Pangkat Laguna v. Comelec,
[40]
the Comelec, as the
government agency tasked with the enforcement and administration of elections laws, is
entitled to the presumption of regularity of official acts with respect to the elections.
The 1987 Constitution imposes upon the Comelec the duty of enforcing and
administering all laws and regulations relative to the conduct of elections. Petitioners
failed to prove that the Comelec committed grave abuse of discretion in recommending
to Congress the postponement of the May 6, 2002 SK elections. The evidence cited by
petitioners even establish that the Comelec has demonstrated an earnest effort to
address the practical problems in holding the SK elections on May 6, 2002. The
presumption remains that the decision of the Comelec to recommend to Congress the
postponement of the elections was made in good faith in the regular course of its official
duties.
Grave abuse of discretion is such capricious and whimsical exercise of judgment
that is patent and gross as to amount to an evasion of a positive duty or a virtual refusal
to perform a duty enjoined by law.
[41]
Public respondents having acted strictly pursuant to
their constitutional powers and duties, we find no grave abuse of discretion in their
assailed acts.
Petitioners contend that the postponement of the SK elections would allow the
incumbent SK officers to perpetuate themselves in power, depriving other youths of the
opportunity to serve in elective SK positions. This argument deserves scant
consideration. While RA No. 9164 contains a hold-over provision, incumbent SK
officials can remain in office only until their successors have been elected or
qualified. On July 15, 2002, when the SK elections are held, the hold-over period
expires and all incumbent SK officials automatically cease to hold their SK offices and
their ex-officio public offices.
In sum, petitioners have no personal and substantial interest in maintaining this
suit. This petition presents no actual justiciable controversy. Petitioners do not cite any
provision of law that is alleged to be unconstitutional. Lastly, we find no grave abuse of
discretion on the part of public respondents.
WHEREFORE, the petition is DISMISSED for utter lack of merit.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Puno, Vitug, Kapunan, Mendoza, Panganiban,
Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Austria-Martinez, and Corona,
JJ., concur.

EN BANC
[G.R. No. 147780. May 10, 2001]
PANFILO LACSON, MICHAEL RAY B. AQUINO and CESAR O.
MANCAO, petitioners, vs. SECRETARY HERNANDO PEREZ,
P/DIRECTOR LEANDRO MENDOZA, and P/SR. SUPT. REYNALDO
BERROYA, respondents.
[G.R. No. 147781. May 10, 2001]
MIRIAM DEFENSOR-SANTIAGO, petitioner, vs. ANGELO REYES,
Secretary of National Defense, et al., respondents.
[G.R. No. 147799. May 10, 2001]
RONALDO A. LUMBAO, petitioner, vs. SECRETARY HERNANDO
PEREZ, GENERAL DIOMEDIO VILLANUEVA, P/DIR. LEANDRO
MENDOZA and P/SR. SUPT. REYNALDO BERROYA, respondents.
[G.R. No. 147810. May 10, 2001]
THE LABAN NG DEMOKRATIKONG PILIPINO, petitioner, vs. THE
DEPARTMENT OF JUSTICE, SECRETARY HERNANDO PEREZ,
THE ARMED FORCES OF THE PHILIPPINES, GENERAL
DIOMEDIO VILLANUEVA, THE PHILIPPINE NATIONAL
POLICE, and DIRECTOR GENERAL LEANDRO
MENDOZA, respondents.
R E S O L U T I O N
MELO, J .:
On May 1, 2001, President Macapagal-Arroyo, faced by an angry and violent mob armed
with explosives, firearms, bladed weapons, clubs, stones and other deadly weapons assaulting
and attempting to break into Malacaang, issued Proclamation No. 38 declaring that there was a
state of rebellion in the National Capital Region. She likewise issued General Order No. 1
directing the Armed Forces of the Philippines and the Philippine National Police to suppress the
rebellion in the National Capital Region. Warrantless arrests of several alleged leaders and
promoters of the rebellion were thereafter effected.
Aggrieved by the warrantless arrests, and the declaration of a state of rebellion, which
allegedly gave a semblance of legality to the arrests, the following four related petitions were
filed before the Court-
(1) G.R. No. 147780 for prohibition, injunction, mandamus, and habeas corpus (with an
urgent application for the issuance of temporary restraining order and/or writ of preliminary
injunction) filed by Panfilo M. Lacson, Michael Ray B. Aquino, and Cezar O. Mancao; (2) G.R.
No. 147781 for mandamus and/or review of the factual basis for the suspension of the privilege
of the writ of habeas corpus, with prayer for a temporary restraining order filed by Miriam
Defensor-Santiago; (3) G.R. No. 147799 for prohibition and injunction with prayer for a writ of
preliminary injunction and/or restraining order filed by Rolando A. Lumbao; and (4) G.R. No.
147810 for certiorari and prohibition filed by the political party Laban ng Demokratikong
Pilipino.
All the foregoing petitions assail the declaration of a state of rebellion by President Gloria
Macapagal-Arroyo and the warrantless arrests allegedly effected by virtue thereof, as having no
basis both in fact an in law. Significantly, on May 6, 2001, President Macapagal-Arroyo ordered
the lifting of the declaration of a state of rebellion in Metro Manila. Accordingly, the instant
petitions have been rendered moot and academic. As to petitioners claim that the proclamation
of a state of rebellion is being used by the authorities to justify warrantless arrests, the
Secretary of Justice denies that it has issued a particular order to arrest specific persons in
connection with the rebellion. He states that what is extant are general instructions to law
enforcement officers and military agencies to implement Proclamation No. 38. Indeed, as stated
in respondents Joint Comments:
[I]t is already the declared intention of the Justice Department and police
authorities to obtain regular warrants of arrests from the courts for all acts
committed prior to and until May 1, 2001 which means that preliminary
investigators will henceforth be conducted.
(Comment, G.R. No. 147780, p. 28; G.R. No.
147781, p. 18; G.R. No. 147799, p. 16; G.R.
No. 147810, p. 24)
With this declaration, petitioners apprehensions as to warrantless arrests should be laid to
rest.
In quelling or suppressing the rebellion, the authorities may only resort to warrantless arrests
of persons suspected of rebellion, as provided under Section 5, Rule 113 of the Rules of Court, if
the circumstances so warrant. The warrantless arrest feared by petitioners is, thus, not based on
the declaration of a state of rebellion.
Moreover, petitioners contention in G.R. No. 147780 (Lacson Petition), 147781 (Defensor-
Santiago Petition), and 147799 (Lumbao Petition) that they are under imminent danger of being
arrested without warrant do not justify their resort to the extraordinary remedies
of mandamus and prohibition, since an individual subjected to warrantless arrest is not without
adequate remedies in the ordinary course of law. Such an individual may ask for a preliminary
investigation under Rule 112 of the Rules of court, where he may adduce evidence in his
defense, or he may submit himself to inquest proceedings to determine whether or not he should
remain under custody and correspondingly be charged in court. Further, a person subject of a
warrantless arrest must be delivered to the proper judicial authorities within the periods provided
in Article 125 of the Revised Penal Code, otherwise the arresting officer could be held liable for
delay in the delivery of detained persons. Should the detention be without legal ground, the
person arrested can charge the arresting officer with arbitrary detention. All this is without
prejudice to his filing an action for damages against the arresting officer under Article 32 of the
Civil Code. Verily, petitioners have a surfeit of other remedies which they can avail themselves
of, thereby making the prayer for prohibition and mandamus improper at this time (Sections 2
and 3, Rule 65, Rules of Court).
Aside from the foregoing reasons, several considerations likewise inevitably call for the
dismissal of the petitions at bar.
G.R. No. 147780

In connection with their alleged impending warrantless arrest, petitioners Lacson, Aquino,
and Mancao pray that the appropriate court before whom the informations against petitioners
are filed be directed to desist from arraigning and proceeding with the trial of the case, until the
instant petition is finally resolved. This relief is clearly premature considering that as of this
date, no complaints or charges have been filed against any of the petitioners for any crime. And
in the event that the same are later filed, this court cannot enjoin criminal prosecution conducted
in accordance with the Rules of Court, for by that time any arrest would have been in pursuance
of a duly issued warrant.
As regards petitioners prayer that the hold departure orders issued against them be declared
null and void ab initio, it is to be noted that petitioners are not directly assailing the validity of
the subject hold departure orders in their petition. The are not even expressing intention to leave
the country in the near future. The prayer to set aside the same must be made in proper
proceedings initiated for that purpose.
Anent petitioners allegations ex abundante ad cautelam in support of their application for
the issuance of a writ of habeas corpus, it is manifest that the writ is not called for since its
purpose is to relieve petitioners from unlawful restraint (Ngaya-an v. Balweg, 200 SCRA 149
[1991]), a matter which remains speculative up to this very day.
G.R. No. 147781

The petition herein is denominated by petitioner Defensor-Santiago as one for mandamus. It
is basic in matters relating to petitions for mandamus that the legal right of the petitioner to the
performance of a particular act which is sought to be compelled must be clear and
complete. Mandamus will not issue the right to relief is clear at the time of the award (Palileo v.
Ruiz Castro, 85 Phil. 272). Up to the present time, petitioner Defensor-Santiago has not shown
that she is in imminent danger of being arrested without a warrant. In point of fact, the
authorities have categorically stated that petitioner will not be arrested without a warrant.
G.R. No. 147799

Petitioner Lumbao, leader of the Peoples Movement against Poverty (PMAP), for his part,
argues that the declaration of a state of rebellion is violative of the doctrine of separation of
powers, being an encroachment on the domain of the judiciary which has the constitutional
prerogative to determine or interpret what took place on May 1, 2001, and that the declaration
of a state of rebellion cannot be an exception to the general rule on the allocation of the
governmental powers.
We disagree. To be sure, section 18, Article VII of the Constitution expressly provides that
[t]he President shall be the Commander-in-Chief of all armed forces of the Philippines and
whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless
violence, invasion or rebellion thus, we held in Integrated Bar of the Philippines v. Hon.
Zamora, (G.R. No. 141284, August 15, 2000):
xxx The factual necessity of calling out the armed forces is not easily quantifiable and
cannot be objectively established since matters considered for satisfying the same is a
combination of several factors which are not always accessible to the courts. Besides
the absence of testual standards that the court may use to judge necessity, information
necessary to arrive at such judgment might also prove unmanageable for the
courts. Certain pertinent information necessary to arrive at such judgment might also
prove unmanageable for the courts. Certain pertinent information might be difficult to
verify, or wholly unavailable to the courts. In many instances, the evidence upon
which the President might decide that there is a need to call out the armed forces may
be of a nature not constituting technical proof.
On the other hand, the President as Commander-in-Chief has a vast intelligence
network to gather information, some of which may be classified as highly confidential
or affecting the security of the state. In the exercise of the power to call, on-the-spot
decisions may be imperatively necessary in emergency situations to avert great loss of
human lives and mass destruction of property. xxx
(at pp. 22-23)
The Court, in a proper case, may look into the sufficiency of the factual basis of the exercise
of this power. However, this is no longer feasible at this time, Proclamation No. 38 having been
lifted.
G.R. No. 147810

Petitioner Laban ng Demoktratikong Pilipino is not a real party-in-interest. The rule
requires that a party must show a personal stake in the outcome of the case or an injury to
himself that can be redressed by a favorable decision so as to warrant an invocation of the courts
jurisdiction and to justify the exercise of the courts remedial powers in his behalf (KMU Labor
Center v. Garcia, Jr., 239 SCRA 386 [1994]). Here, petitioner has not demonstrated any injury
to itself which would justify resort to the Court. Petitioner is a juridical person not subject to
arrest. Thus, it cannot claim to be threatened by a warrantless arrest. Nor is it alleged that its
leaders, members, and supporters are being threatened with warrantless arrest and detention for
the crime of rebellion. Every action must be brought in the name of the party whose legal right
has been invaded or infringed, or whose legal right is under imminent threat of invasion or
infringement.
At best, the instant petition may be considered as an action for declaratory relief, petitioner
claiming that its right to freedom of expression and freedom of assembly is affected by the
declaration of a state of rebellion and that said proclamation is invalid for being contrary to the
Constitution.
However, to consider the petition as one for declaratory relief affords little comfort to
petitioner, this Court not having jurisdiction in the first instance over such a petition. Section
5[1], Article VIII of the Constitution limits the original jurisdiction of the Court to cases
affecting ambassadors, other public ministers and consuls, and over petitions for certiorari,
prohibition, mandamus, quo warranto, andhabeas corpus.
WHEREFORE, premises considered, the petitions are hereby DISMISSED. However, in
G.R. No. 147780, 147781, and 147799, respondents, consistent and congruent with their
undertaking earlier adverted to, together with their agents, representatives, and all persons acting
for and in their behalf, are hereby enjoined from arresting petitioners therein without the required
judicial warrant for all acts committed in relation to or in connection with the May 1, 2001 siege
of Malacaang.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Puno, Mendoza, Panganiban, and Gonzaga-Reyes, JJ., concur.
Vitug, J., see separate opinion.
Kapunan, and Sandoval-Gutierrez, JJ., see dissenting opinion.
Pardo, J., join the dissent of J. Kapunan.
Quisumbing, Buena, Ynares-Santiago, and De Leon, Jr., JJ., on leave.

EN BANC
[G.R. No. 159085. February 3, 2004]
SANLAKAS, represented by REP. J.V. Bautista, and PARTIDO NG
MANGGAGAWA, represented by REP. RENATO
MAGTUBO petitioners, vs.EXECUTIVE SECRETARY
SECRETARY ANGELO REYES, GENERAL NARCISO ABAYA,
DIR. GEN. HERMOGENES EBDANE, respondents.
[G.R. No. 159103. February 3, 2004]
SOCIAL JUSTICE SOCIETY (SJS) OFFICERS/MEMBERS namely,
SAMSON S. ALCANTARA, ED VINCENT S. ALBANO, RENE B.
GOROSPE, EDWIN R. SANDOVAL and RODOLFO D.
MAPILE, petitioners, vs. HON. EXECUTIVE SECRETARY
ALBERTO G. ROMULO, HON. SECRETARY OF JUSTICE SIMEON
DATUMANONG, HON. SECRETARY OF NATIONAL DEFENSE
ANGELO REYES, and HON. SECRETARY JOSE LINA,
JR., respondents.
[G.R. No. 159185. February 3, 2004]
REP. ROLEX T. SUPLICO, REP. CARLOS M. PADILLA, REP. CELSO L.
LOBREGAT, REP. HUSSIN U. AMIN, REP. ABRAHAM KAHLIL B.
MITRA, REP. EMMYLOU J. TALINO-SANTOS, and REP.
GEORGILU R. YUMUL-HERMIDA, petitioners, vs. PRESIDENT
GLORIA MACAPAGAL-ARROYO; and EXECUTIVE SECRETARY
ALBERTO G. ROMULO, respondents.
[G.R. No. 159196. February 3, 2004]
AQUILINO Q. PIMENTEL, JR. as a Member of the
Senate, petitioner, vs. SECRETARY ALBERTO ROMULO, AS
EXECUTIVE SECRETARY; SECRETARY ANGELO REYES, AS
SECRETARY OF NATIONAL DEFENSE; GENERAL NARCISO
ABAYA, AS CHIEF OF STAFF OF THE ARMED FORCES;
SECRETARY JOSE LINA, et al., respondents.
D E C I S I O N
TINGA, J .:
They came in the middle of the night. Armed with high-powered
ammunitions and explosives, some three hundred junior officers and enlisted
men of the Armed Forces of the Philippines (AFP) stormed into the Oakwood
Premiere apartments in Makati City in the wee hours of July 27,
2003. Bewailing the corruption in the AFP, the soldiers demanded, among
other things, the resignation of the President, the Secretary of Defense and
the Chief of the Philippine National Police (PNP).
[1]

In the wake of the Oakwood occupation, the President issued later in the
day Proclamation No. 427 and General Order No. 4, both declaring a state of
rebellion and calling out the Armed Forces to suppress the
rebellion. Proclamation No. 427 reads in full:
PROCLAMATION NO. 427
DECLARING A STATE OF REBELLION
WHEREAS, certain elements of the Armed Forces of the Philippines, armed with
high-powered firearms and explosives, acting upon the instigation and command and
direction of known and unknown leaders, have seized a building in Makati City, put
bombs in the area, publicly declared withdrawal of support for, and took arms against
the duly constituted Government, and continue to rise publicly and show open
hostility, for the purpose of removing allegiance to the Government certain bodies of
the Armed Forces of the Philippines and the Philippine National Police, and depriving
the President of the Republic of the Philippines, wholly or partially, of her powers and
prerogatives which constitute the crime of rebellion punishable under Article 134 of
the Revised Penal Code, as amended;
WHEREAS, these misguided elements of the Armed Forces of the Philippines are
being supported, abetted and aided by known and unknown leaders, conspirators and
plotters in the government service and outside the government;
WHEREAS, under Section 18, Article VII of the present Constitution, whenever it
becomes necessary, the President, as the Commander-in-Chief of the Armed Forces of
the Philippines, may call out such Armed Forces to suppress the rebellion;
NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, by virtue of the
powers vested in me by law, hereby confirm the existence of an actual and on-going
rebellion, compelling me to declare a state of rebellion.
In view of the foregoing, I am issuing General Order No. 4 in accordance with Section
18, Article VII of the Constitution, calling out the Armed Forces of the Philippines
and the Philippine National Police to immediately carry out the necessary actions and
measures to suppress and quell the rebellion with due regard to constitutional rights.
General Order No. 4 is similarly worded:
GENERAL ORDER NO. 4
DIRECTING THE ARMED FORCES OF THE PHILIPPINES AND THE
PHILIPPINE NATIONAL POLICE TO SUPPRESS REBELLION
WHEREAS, certain elements of the Armed Forces of the Philippines, armed with
high-powered firearms and explosives, acting upon the instigation and command and
direction of known and unknown leaders, have seized a building in Makati City, put
bombs in the area, publicly declared withdrawal of support for, and took arms against
the duly constituted Government, and continue to rise publicly and show open
hostility, for the purpose of removing allegiance to the Government certain bodies of
the Armed Forces of the Philippines and the Philippine National Police, and depriving
the President of the Republic of the Philippines, wholly or partially, of her powers and
prerogatives which constitute the crime of rebellion punishable under Article 134 et
seq. of the Revised Penal Code, as amended;
WHEREAS, these misguided elements of the Armed Forces of the Philippines are
being supported, abetted and aided by known and unknown leaders, conspirators and
plotters in the government service and outside the government;
WHEREAS, under Section 18, Article VII of the present Constitution, whenever it
becomes necessary, the President, as the Commander-in-Chief of all Armed Forces of
the Philippines, may call out such Armed Forces to suppress the rebellion;
NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, by virtue of the
powers vested in me by the Constitution as President of the Republic of the
Philippines and Commander-in-Chief of all the armed forces of the Philippines and
pursuant to Proclamation No. 427 dated July 27, 2003, do hereby call upon the Armed
Forces of the Philippines and the Philippine National Police to suppress and quell the
rebellion.
I hereby direct the Chief of the Armed Forces of the Philippines and the Chief of the
Philippine National Police and the officers and men of the Armed Forces of the
Philippines and the Philippine National Police to immediately carry out the necessary
and appropriate actions and measures to suppress and quell the rebellion with due
regard to constitutional rights.
By the evening of July 27, 2003, the Oakwood occupation had
ended. After hours-long negotiations, the soldiers agreed to return to
barracks. The President, however, did not immediately lift the declaration of a
state of rebellion and did so only on August 1, 2003, through Proclamation No.
435:
DECLARING THAT THE STATE OF REBELLION HAS CEASED TO EXIST
WHEREAS, by virtue of Proclamation No. 427 dated July 27, 2003, a state of
rebellion was declared;
WHEREAS, by virtue of General Order No. 4 dated July 27, 2003, which was issued
on the basis of Proclamation No. 427 dated July 27, 2003, and pursuant to Article VII,
Section 18 of the Constitution, the Armed Forces of the Philippines and the Philippine
National Police were directed to suppress and quell the rebellion;
WHEREAS, the Armed Forces of the Philippines and the Philippine National Police
have effectively suppressed and quelled the rebellion.
NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the
Philippines, by virtue of the powers vested in me by law, hereby declare that the state
of rebellion has ceased to exist.
In the interim, several petitions were filed before this Court challenging the
validity of Proclamation No. 427 and General Order No. 4.
In G.R. No. 159085 (Sanlakas and PM v. Executive Secretary, et
al.),
[2]
party-list organizations Sanlakas and Partido ng Manggagawa (PM),
contend that Section 18, Article VII of the Constitution does not require the
declaration of a state of rebellion to call out the armed forces.
[3]
They further
submit that, because of the cessation of the Oakwood occupation, there exists
no sufficient factual basis for the proclamation by the President of a state of
rebellion for an indefinite period.
[4]

Petitioners in G.R. No. 159103 (SJS Officers/Members v. Hon. Executive
Secretary, et al.) are officers/members of the Social Justice Society (SJS),
Filipino citizens, taxpayers, law professors and bar reviewers.
[5]
Like
Sanlakas and PM, they claim that Section 18, Article VII of the Constitution
does not authorize the declaration of a state of rebellion.
[6]
They contend that
the declaration is a constitutional anomaly that confuses, confounds and
misleads because [o]verzealous public officers, acting pursuant to such
proclamation or general order, are liable to violate the constitutional right of
private citizens.
[7]
Petitioners also submit that the proclamation is a
circumvention of the report requirement under the same Section 18, Article
VII, commanding the President to submit a report to Congress within 48 hours
from the proclamation of martial law.
[8]
Finally, they contend that the
presidential issuances cannot be construed as an exercise of emergency
powers as Congress has not delegated any such power to the President.
[9]

In G.R. No. 159185 (Rep. Suplico et al. v. President Macapagal-Arroyo
and Executive Secretary Romulo), petitioners brought suit as citizens and as
Members of the House of Representatives whose rights, powers and functions
were allegedly affected by the declaration of a state of rebellion.
[10]
Petitioners
do not challenge the power of the President to call out the Armed
Forces.
[11]
They argue, however, that the declaration of a state of rebellion is a
superfluity, and is actually an exercise of emergency powers.
[12]
Such
exercise, it is contended, amounts to a usurpation of the power of Congress
granted by Section 23 (2), Article VI of the Constitution.
[13]

In G.R. No. 159196 (Pimentel v. Romulo, et al.), petitioner Senator assails
the subject presidential issuances as an unwarranted, illegal and abusive
exercise of a martial law power that has no basis under the Constitution.
[14]
In
the main, petitioner fears that the declaration of a state of rebellion opens the
door to the unconstitutional implementation of warrantless arrests for the
crime of rebellion.
[15]

Required to comment, the Solicitor General argues that the petitions have
been rendered moot by the lifting of the declaration.
[16]
In addition, the Solicitor
General questions the standing of the petitioners to bring suit.
[17]

The Court agrees with the Solicitor General that the issuance of
Proclamation No. 435, declaring that the state of rebellion has ceased to exist,
has rendered the case moot. As a rule, courts do not adjudicate moot cases,
judicial power being limited to the determination of
actual controversies.
[18]
Nevertheless, courts will decide a question, otherwise
moot, if it is capable of repetition yet evading review.
[19]
The case at bar is one
such case.
Once before, the President on May 1, 2001 declared a state of rebellion
and called upon the AFP and the PNP to suppress the rebellion through
Proclamation No. 38 and General Order No. 1. On that occasion, an angry
and violent mob armed with explosives, firearms, bladed weapons, clubs,
stones and other deadly weapons assaulted and attempted to break into
Malacaang.
[20]
Petitions were filed before this Court assailing the validity of
the Presidents declaration. Five days after such declaration, however, the
President lifted the same. The mootness of the petitions in Lacson v.
Perez and accompanying cases
[21]
precluded this Court from addressing the
constitutionality of the declaration.
To prevent similar questions from reemerging, we seize this opportunity to
finally lay to rest the validity of the declaration of a state of rebellion in the
exercise of the Presidents calling out power, the mootness of the petitions
notwithstanding.
Only petitioners Rep. Suplico et al. and Sen. Pimentel, as Members of
Congress, have standing to challenge the subject issuances. In Philippine
Constitution Association v. Enriquez,
[22]
this Court recognized that:
To the extent the powers of Congress are impaired, so is the power of each member
thereof, since his office confers a right to participate in the exercise of the powers of
that institution.
An act of the Executive which injures the institution of Congress causes a derivative
but nonetheless substantial injury, which can be questioned by a member of
Congress. In such a case, any member of Congress can have a resort to the courts.
Petitioner Members of Congress claim that the declaration of a state of
rebellion by the President is tantamount to an exercise of Congress
emergency powers, thus impairing the lawmakers legislative
powers. Petitioners also maintain that the declaration is a subterfuge to avoid
congressional scrutiny into the Presidents exercise of martial law powers.
Petitioners Sanlakas and PM, and SJS Officers/Members, have no legal
standing or locus standi to bring suit. Legal standing or locus standi has
been defined as a personal and substantial interest in the case such that the
party has sustained or will sustain direct injury as a result of the governmental
act that is being challenged. The gist of the question of standing is whether
a party alleges such personal stake in the outcome of the controversy as to
assure that concrete adverseness which sharpens the presentation of issues
upon which the court depends for illumination of difficult constitutional
questions.
[23]

Petitioners Sanlakas and PM assert that:
2. As a basic principle of the organizations and as an important plank in their
programs, petitioners are committed to assert, defend, protect, uphold, and promote
the rights, interests, and welfare of the people, especially the poor and marginalized
classes and sectors of Philippine society. Petitioners are committed to defend and
assert human rights, including political and civil rights, of the citizens.
3. Members of the petitioner organizations resort to mass actions and mobilizations in
the exercise of their Constitutional rights to peaceably assemble and their freedom of
speech and of expression underSection 4, Article I I I of the 1987 Constitution, as a
vehicle to publicly ventilate their grievances and legitimate demands and to mobilize
public opinion to support the same.
[24]
[Emphasis in the original.]
Petitioner party-list organizations claim no better right than the Laban ng
Demokratikong Pilipino, whose standing this Court rejected in Lacson v.
Perez:
petitioner has not demonstrated any injury to itself which would justify the resort
to the Court. Petitioner is a juridical person not subject to arrest. Thus, it cannot
claim to be threatened by a warrantless arrest. Nor is it alleged that its leaders,
members, and supporters are being threatened with warrantless arrest and detention
for the crime of rebellion. Every action must be brought in the name of the party
whose legal rights has been invaded or infringed, or whose legal right is under
imminent threat of invasion or infringement.
At best, the instant petition may be considered as an action for declaratory relief,
petitioner claiming that it[]s right to freedom of expression and freedom of assembly
is affected by the declaration of a state of rebellion and that said proclamation is
invalid for being contrary to the Constitution.
However, to consider the petition as one for declaratory relief affords little comfort to
petitioner, this Court not having jurisdiction in the first instance over such a
petition. Section 5 [1], Article VIII of the Constitution limits the original jurisdiction
of the court to cases affecting ambassadors, other public ministers and consuls, and
over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas
corpus.
[25]

Even assuming that petitioners are peoples organizations, this status
would not vest them with the requisite personality to question the validity of
the presidential issuances, as this Court made clear in Kilosbayan v. Morato:
[26]

The Constitution provides that the State shall respect the role of independent
peoples organizations to enable the people to pursue and protect, within the
democratic framework, their legitimate and collective interests and aspirations
through peaceful and lawful means, that their right to effective and reasonable
participation at all levels of social, political, and economic decision-making shall not
be abridged. (Art. XIII, 15-16)
These provisions have not changed the traditional rule that only real parties in
interest or those with standing, as the case may be, may invoke the judicial
power. The jurisdiction of this Court, even in cases involving constitutional
questions, is limited by the case and controversy requirement of Art. VIII, 5. This
requirement lies at the very heart of the judicial function. It is what differentiates
decisionmaking in the courts from decisionmaking in the political departments of the
government and bars the bringing of suits by just any party.
[27]

That petitioner SJS officers/members are taxpayers and citizens does not
necessarily endow them with standing. A taxpayer may bring suit where the
act complained of directly involves the illegal disbursement of public funds
derived from taxation.
[28]
No such illegal disbursement is alleged.
On the other hand, a citizen will be allowed to raise a constitutional
question only when he can show that he has personally suffered some actual
or threatened injury as a result of the allegedly illegal conduct of the
government; the injury is fairly traceable to the challenged action; and the
injury is likely to be redressed by a favorable action.
[29]
Again, no such injury is
alleged in this case.
Even granting these petitioners have standing on the ground that the
issues they raise are of transcendental importance, the petitions must fail.
It is true that for the purpose of exercising the calling out power the
Constitution does not require the President to make a declaration of a state of
rebellion. Section 18, Article VII provides:
Sec. 18. The President shall be the Commander-in-Chief of all armed forces of the
Philippines and whenever it becomes necessary, he may call out such armed forces
to prevent or suppress lawless violence, invasion or rebellion. In case of invasion
or rebellion, when the public safety requires it, he may, for a period not exceeding
sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines
or any part thereof under martial law. Within forty-eight hours from the proclamation
of martial law or the suspension of the writ of habeas corpus, the President shall
submit a report in person or in writing to the Congress. The Congress, voting jointly,
by a vote of at least a majority of all its Members in regular or special session, may
revoke such proclamation or suspension, which revocation shall not be set aside by
the President. Upon the initiative of the President, the Congress may, in the same
manner, extend such proclamation or suspension for a period to be determined by the
Congress, if the invasion or rebellion shall persist and public safety requires it.
The Congress, if not in session, shall, within twenty-four hours following such
proclamation or suspension, convene in accordance with its rules without need of a
call.
The Supreme Court may review, in an appropriate proceeding filed by any citizen, the
sufficiency of the factual basis for the proclamation of martial law or the suspension
of the privilege of the writ of habeas corpus or the extension thereof, and must
promulgate its decision thereon within thirty days from its filing.
A state of martial law does not suspend the operation of the Constitution, nor supplant
the functioning of the civil courts or legislative assemblies, nor authorize the
conferment of the jurisdiction on military courts and agencies over civilians where
civil courts are able to function, nor automatically suspend the privilege of the writ.
The suspension of the privilege of the writ shall apply only to persons judicially
charged for rebellion or offenses inherent in or directly connected with invasion.
During the suspension of the privilege of the writ, any person thus arrested or detained
shall be judicially charged within three days, otherwise he shall be
released. [Emphasis supplied.]
The above provision grants the President, as Commander-in-Chief, a
sequence of graduated power[s].
[30]
From the most to the least benign, these
are: the calling out power, the power to suspend the privilege of the writ
of habeas corpus, and the power to declare martial law. In the exercise of the
latter two powers, the Constitution requires the concurrence of two conditions,
namely, an actual invasion or rebellion, and that public safety requires the
exercise of such power.
[31]
However, as we observed in Integrated Bar of the
Philippines v. Zamora,
[32]
[t]hese conditions are not required in the exercise of
the calling out power. The only criterion is that whenever it becomes
necessary, the President may call the armed forces to prevent or suppress
lawless violence, invasion or rebellion.
Nevertheless, it is equally true that Section 18, Article VII
does not expressly prohibit the President from declaring a state of
rebellion. Note that the Constitution vests the President not only
with Commander-in-Chief powers but, first and foremost,
with Executive powers.
Section 1, Article VII of the 1987 Philippine Constitution states: The
executive power shall be vested in the President. As if by exposition,
Section 17 of the same Article provides: He shall ensure that the laws be
faithfully executed. The provisions trace their history to the Constitution of the
United States.
The specific provisions of the U.S. Constitution granting the U.S. President
executive and commander-in-chief powers have remained in their original
simple form since the Philadelphia Constitution of 1776, Article II of which
states in part:
Section 1. 1. The Executive Power shall be vested in a President of the United States
of America . . . .
. . . .
Section 2. 1. The President shall be Commander in Chief of the Army and Navy of
the United States. . . .
. . . .
Section 3. he shall take care that the laws be faithfully executed. [Article II
Executive Power]
Recalling in historical vignettes the use by the U.S. President of the
above-quoted provisions, as juxtaposed against the corresponding action of
the U.S. Supreme Court, is instructive. Clad with the prerogatives of the office
and endowed with sovereign powers, which are drawn chiefly from the
Executive Power and Commander-in-Chief provisions, as well as the
presidential oath of office, the President serves as Chief of State or Chief of
Government, Commander-in-Chief, Chief of Foreign Relations and Chief of
Public Opinion.
[33]

First to find definitive new piers for the authority of the Chief of State, as
the protector of the people, was President Andrew Jackson. Coming to office
by virtue of a political revolution, Jackson, as President not only kept faith with
the people by driving the patricians from power. Old Hickory, as he was
fondly called, was the first President to champion the indissolubility of the
Union by defeating South Carolinas nullification effort.
[34]

The Federal Tariff Acts of 1828 and 1832 that Congress enacted did not
pacify the hotspurs from South Carolina. Its State Legislature ordered an
election for a convention, whose members quickly passed an Ordinance of
Nullification. The Ordinance declared the Tariff Acts unconstitutional,
prohibited South Carolina citizens from obeying them after a certain date in
1833, and threatened secession if the Federal Government sought to oppose
the tariff laws. The Legislature then implemented the Ordinance with bristling
punitive laws aimed at any who sought to pay or collect customs duties.
[35]

Jackson bided his time. His task of enforcement would not be
easy. Technically, the President might send troops into a State only if the
Governor called for help to suppress an insurrection, which would not occur in
the instance. The President could also send troops to see to it that the laws
enacted by Congress were faithfully executed. But these laws were aimed at
individual citizens, and provided no enforcement machinery against violation
by a State. Jackson prepared to ask Congress for a force bill.
[36]

In a letter to a friend, the President gave the essence of his position. He
wrote: . . . when a faction in a State attempts to nullify a constitutional law of
Congress, or to destroy the Union, the balance of the people composing this
Union have a perfect right to coerce them to obedience. Then in a
Proclamation he issued on December 10, 1832, he called upon South
Carolinians to realize that there could be no peaceable interference with the
execution of the laws, and dared them, disunion by armed force
is treason. Are you ready to incur its guilt?
[37]

The Proclamation frightened nullifiers, non-nullifiers and tight-rope
walkers. Soon, State Legislatures began to adopt resolutions of agreement,
and the President announced that the national voice from Maine on the north
to Louisiana on the south had declared nullification and accession confined to
contempt and infamy.
[38]

No other President entered office faced with problems so formidable, and
enfeebled by personal and political handicaps so daunting, as Abraham
Lincoln.
Lincoln believed the Presidents power broad and that of Congress explicit
and restricted, and sought some source of executive power not failed by
misuse or wrecked by sabotage. He seized upon the Presidents designation
by the Constitution as Commander-in-Chief, coupled it to the executive power
provision and joined them as the war power which authorized him to do
many things beyond the competence of Congress.
[39]

Lincoln embraced the Jackson concept of the Presidents independent
power and duty under his oath directly to represent and protect the people. In
his Message of July 4, 1861, Lincoln declared that the Executive found the
duty of employing the war power in defense of the government forced upon
him. He could not but perform the duty or surrender the existence of the
Government . . . . This concept began as a transition device, to be validated
by Congress when it assembled. In less than two-years, it grew into an
independent power under which he felt authorized to suspend the privilege of
the writ of habeas corpus, issue the Emancipation Proclamation, and restore
reoccupied States.
[40]

Lincolns Proclamation of April 15, 1861, called for 75,000 troops. Their
first service, according to the proclamation, would be to recapture forts, places
and property, taking care to avoid any devastation, any destruction of or
interference with property, or any disturbance of peaceful citizens.
[41]

Early in 1863, the U.S. Supreme Court approved President Lincolns
report to use the war powers without the benefit of Congress. The decision
was handed in the celebrated Prize Cases
[42]
which involved suits attacking the
Presidents right to legally institute a blockade. Although his Proclamation
was subsequently validated by Congress, the claimants contended that under
international law, a blockade could be instituted only as a measure of war
under the sovereign power of the State. Since under the Constitution only
Congress is exclusively empowered to declare war, it is only that body that
could impose a blockade and all prizes seized before the legislative
declaration were illegal. By a 5 to 4 vote, the Supreme Court upheld Lincolns
right to act as he had.
[43]

In the course of time, the U.S. Presidents power to call out armed forces
and suspend the privilege of the writ of habeas corpus without prior legislative
approval, in case of invasion, insurrection, or rebellion came to be recognized
and accepted. The United States introduced the expanded presidential
powers in the Philippines through the Philippine Bill of 1902.
[44]
The use of the
power was put to judicial test and this Court held that the case raised a
political question and said that it is beyond its province to inquire into the
exercise of the power.
[45]
Later, the grant of the power was incorporated in the
1935 Constitution.
[46]

Elected in 1884, Grover Cleveland took his ascent to the presidency to
mean that it made him the trustee of all the people. Guided by the maxim that
Public office is a public trust, which he practiced during his incumbency,
Cleveland sent federal troops to Illinois to quell striking railway workers who
defied a court injunction. The injunction banned all picketing and distribution of
handbills. For leading the strikes and violating the injunction, Debs, who was
the union president, was convicted of contempt of court. Brought to the
Supreme Court, the principal issue was by what authority of the Constitution
or statute had the President to send troops without the request of the
Governor of the State.
[47]

In In Re: Eugene Debs, et al,
[48]
the Supreme Court upheld the contempt
conviction. It ruled that it is not the governments province to mix in merely
individual present controversies. Still, so it went on, whenever wrongs
complained of are such as affect the public at large, and are in respect of
matters which by the Constitution are entrusted to the care of the Nation and
concerning which the Nation owes the duty to all citizens of securing to them
their common rights, then the mere fact that the Government has no
pecuniary interest in the controversy is not sufficient to exclude it from the
Courts, or prevent it from taking measures therein to fully discharge those
constitutional duties.
[49]
Thus, Clevelands course had the Courts attest.
Taking off from President Cleveland, President Theodore Roosevelt
launched what political scientists dub the stewardship theory. Calling himself
the steward of the people, he felt that the executive power was limited only
by the specific restrictions and prohibitions appearing in the Constitution, or
impleaded by Congress under its constitutional powers.
[50]

The most far-reaching extension of presidential power T.R. ever
undertook to employ was his plan to occupy and operate Pennsylvanias coal
mines under his authority as Commander-in-Chief. In the issue, he found
means other than force to end the 1902 hard-coal strike, but he had made
detailed plans to use his power as Commander-in-Chief to wrest the mines
from the stubborn operators, so that coal production would begin again.
[51]

Eventually, the power of the State to intervene in and even take over the
operation of vital utilities in the public interest was accepted. In the
Philippines, this led to the incorporation of Section 6,
[52]
Article XIII of the 1935
Constitution, which was later carried over with modifications in Section
7,
[53]
Article XIV of the 1973 Constitution, and thereafter in Section 18,
[54]
Article
XII of the 1987 Constitution.
The lesson to be learned from the U.S. constitutional history is that the
Commander-in-Chief powers are broad enough as it is and become more so
when taken together with the provision on executive power and the
presidential oath of office. Thus, the plenitude of the powers of the presidency
equips the occupant with the means to address exigencies or threats which
undermine the very existence of government or the integrity of the State.
In The Philippine Presidency A Study of Executive Power, the late Mme.
Justice Irene R. Cortes, proposed that the Philippine President was vested
with residual power and that this is even greater than that of the U.S.
President. She attributed this distinction to the unitary and highly centralized
nature of the Philippine government. She noted that, There is no counterpart
of the several states of the American union which have reserved powers
under the United States constitution. Elaborating on the constitutional basis
for her argument, she wrote:
. The [1935] Philippine [C]onstitution establishes the three departments of the
government in this manner: The legislative power shall be vested in a Congress of
the Philippines which shall consist of a Senate and a House of Representatives. The
executive power shall be vested in a President of the Philippines. The judicial
powers shall be vested in one Supreme Court and in such inferior courts as may be
provided by law. These provisions not only establish a separation of powers by
actual division but also confer plenary legislative, executive, and judicial powers. For
as the Supreme Court of the Philippines pointed out in Ocampo v. Cabangis, a grant
of legislative power means a grant of all the legislative power; and a grant of the
judicial power means a grant of all the judicial power which may be exercised under
the government. If this is true of the legislative power which is exercised by two
chambers with a combined membership [at that time] of more than 120 and of the
judicial power which is vested in a hierarchy of courts, it can equally if not more
appropriately apply to the executive power which is vested in one official the
president. He personifies the executive branch. There is a unity in the executive
branch absent from the two other branches of government. The president is not the
chief of many executives. He is the executive. His direction of the executive branch
can be more immediate and direct than the United States president because he is given
by express provision of the constitution control over all executive departments,
bureaus and offices.
[55]

The esteemed Justice conducted her study against the backdrop of the
1935 Constitution, the framers of which, early on, arrived at a general opinion
in favor of a strong Executive in the Philippines.
[56]
Since then, reeling from the
aftermath of martial law, our most recent Charter has restricted the
Presidents powers as Commander-in-Chief. The same, however, cannot be
said of the Presidents powers as Chief Executive.
In her ponencia in Marcos v. Manglapus, Justice Cortes put her thesis into
jurisprudence. There, the Court, by a slim 8-7 margin, upheld the Presidents
power to forbid the return of her exiled predecessor. The rationale for the
majoritys ruling rested on the Presidents
unstated residual powers which are implied from the grant of executive power and
which are necessary for her to comply with her duties under the Constitution. The
powers of the President are not limited to what are expressly enumerated in the article
on the Executive Department and in scattered provisions of the Constitution. This is
so, notwithstanding the avowed intent of the members of the Constitutional
Commission of 1986 to limit the powers of the President as a reaction to the abuses
under the regime of Mr. Marcos, for the result was a limitation of specific powers of
the President, particularly those relating to the commander-in-chief clause, but not a
diminution of the general grant of executive power.
[57]
[Underscoring supplied. Italics
in the original.]
Thus, the Presidents authority to declare a state of rebellion springs in the
main from her powers as chief executive and, at the same time, draws
strength from her Commander-in-Chief powers. Indeed, as the Solicitor
General accurately points out, statutory authority for such a declaration may
be found in Section 4, Chapter 2 (Ordinance Power), Book III (Office of the
President) of the Revised Administrative Code of 1987, which states:
SEC. 4. Proclamations. Acts of the President fixing a date or declaring a status or
condition of public moment or interest, upon the existence of which the operation of
a specific law or regulation is made to depend, shall be promulgated
in proclamations which shall have the force of an executive order. [Emphasis
supplied.]
The foregoing discussion notwithstanding, in calling out the armed forces,
a declaration of a state of rebellion is an utter superfluity.
[58]
At most, it only
gives notice to the nation that such a state exists and that the armed forces
may be called to prevent or suppress it.
[59]
Perhaps the declaration may wreak
emotional effects upon the perceived enemies of the State, even on the entire
nation. But this Courts mandate is to probe only into the legal consequences
of the declaration. This Court finds that such a declaration is devoid of any
legal significance. For all legal intents, the declaration is deemed not written.
Should there be any confusion generated by the issuance of
Proclamation No. 427 and General Order No. 4, we clarify that, as the
dissenters in Lacson correctly pointed out, the mere declaration of a state of
rebellion cannot diminish or violate constitutionally protected rights.
[60]
Indeed, if
a state of martial law does not suspend the operation of the Constitution or
automatically suspend the privilege of the writ of habeas corpus,
[61]
then it is
with more reason that a simple declaration of a state of rebellion could not
bring about these conditions.
[62]
At any rate, the presidential issuances
themselves call for the suppression of the rebellion with due regard to
constitutional rights.
For the same reasons, apprehensions that the military and police
authorities may resort to warrantless arrests are likewise
unfounded. In Lacson vs. Perez, supra, majority of the Court held that [i]n
quelling or suppressing the rebellion, the authorities may only resort to
warrantless arrests of persons suspected of rebellion, as provided under
Section 5, Rule 113 of the Rules of Court,
[63]
if the circumstances so
warrant. The warrantless arrest feared by petitioners is, thus, not based on
the declaration of a state of rebellion.
[64]
In other words, a person may be
subjected to a warrantless arrest for the crime of rebellion whether or not the
President has declared a state of rebellion, so long as the requisites for a valid
warrantless arrest are present.
It is not disputed that the President has full discretionary power to call out
the armed forces and to determine the necessity for the exercise of such
power. While the Court may examine whether the power was exercised within
constitutional limits or in a manner constituting grave abuse of discretion,
none of the petitioners here have, by way of proof, supported their assertion
that the President acted without factual basis.
[65]

The argument that the declaration of a state of rebellion amounts to a
declaration of martial law and, therefore, is a circumvention of the report
requirement, is a leap of logic. There is no indication that military tribunals
have replaced civil courts in the theater of war or that military authorities
have taken over the functions of civil government. There is no allegation of
curtailment of civil or political rights. There is no indication that the President
has exercised judicial and legislative powers. In short, there is no illustration
that the President has attempted to exercise or has exercised martial law
powers.
Nor by any stretch of the imagination can the declaration constitute an
indirect exercise of emergency powers, which exercise depends upon a grant
of Congress pursuant to Section 23 (2), Article VI of the Constitution:
Sec. 23. (1) .
(2) In times of war or other national emergency, the Congress may, by law, authorize
the President, for a limited period and subject to such restrictions as it may prescribe,
to exercise powers necessary and proper to carry out a declared national
policy. Unless sooner withdrawn by resolution of the Congress, such powers shall
cease upon the next adjournment thereof.
The petitions do not cite a specific instance where the President has
attempted to or has exercised powers beyond her powers as Chief Executive
or as Commander-in-Chief. The President, in declaring a state of rebellion
and in calling out the armed forces, was merely exercising a wedding of her
Chief Executive and Commander-in-Chief powers. These are purely
executive powers, vested on the President by Sections 1 and 18, Article VII,
as opposed to the delegated legislative powers contemplated by Section 23
(2), Article VI.
WHEREFORE, the petitions are hereby DISMISSED







EN BANC


PROF. RANDOLF S. DAVID,
LORENZO TAADA III, RONALD
LLAMAS, H. HARRY L. ROQUE, JR.,
JOEL RUIZ BUTUYAN, ROGER R.
RAYEL, GARY S.
MALLARI, ROMEL
REGALADO BAGARES,
CHRISTOPHER F.C. BOLASTIG,
Petitioners,

- versus -


GLORIA MACAPAGAL-
ARROYO, AS PRESIDENT
G.R. No. 171396

Present:

PANGANIBAN, C.J.,

*
PUNO,
QUISUMBING,
YNARES-SANTIAGO,
SANDOVAL-GUTIERREZ,
CARPIO,
AUSTRIA-MARTINEZ,
CORONA,
CARPIO MORALES,
CALLEJO, SR.,
AZCUNA,
AND COMMANDER-IN-CHIEF,
EXECUTIVE SECRETARY EDUARDO
ERMITA, HON. AVELINO CRUZ II,
SECRETARY OF NATIONAL
DEFENSE, GENERAL GENEROSO
SENGA, CHIEF OF STAFF, ARMED
FORCES OF THE PHILIPPINES,
DIRECTOR GENERAL ARTURO
LOMIBAO, CHIEF, PHILIPPINE
NATIONAL POLICE,
Respondents.
x-------------------------------------------------x
NIEZ CACHO-OLIVARES AND
TRIBUNE PUBLISHING CO., INC.,
Petitioners,


- versus -


HONORABLE SECRETARY
EDUARDO ERMITA AND
HONORABLE DIRECTOR GENERAL
ARTURO C. LOMIBAO,
Respondents.
x-------------------------------------------------x
FRANCIS JOSEPH G. ESCUDERO,
JOSEPH A. SANTIAGO, TEODORO A.
CASINO, AGAPITO A. AQUINO,
MARIO J. AGUJA, SATUR C.
OCAMPO, MUJIV S. HATAMAN, JUAN
EDGARDO ANGARA, TEOFISTO DL.
GUINGONA III, EMMANUEL JOSEL J.
VILLANUEVA, LIZA L. MAZA, IMEE
R. MARCOS, RENATO B. MAGTUBO,
JUSTIN MARC SB. CHIPECO, ROILO
GOLEZ, DARLENE ANTONINO-
CUSTODIO, LORETTA ANN P.
ROSALES, JOSEL G. VIRADOR,
RAFAEL V. MARIANO, GILBERT C.
REMULLA, FLORENCIO G. NOEL,
TINGA,
CHICO-NAZARIO,
GARCIA, and
VELASCO, JJ.

Promulgated:

May 3, 2006


G.R. No. 171409












G.R. No. 171485
















ANA THERESIA HONTIVEROS-
BARAQUEL, IMELDA C. NICOLAS,
MARVIC M.V.F. LEONEN, NERI
JAVIER COLMENARES, MOVEMENT
OF CONCERNED CITIZENS FOR
CIVIL LIBERTIES REPRESENTED BY
AMADO GAT INCIONG,
Petitioners,

- versus -


EDUARDO R. ERMITA, EXECUTIVE
SECRETARY, AVELINO J. CRUZ, JR.,
SECRETARY, DND RONALDO V.
PUNO, SECRETARY, DILG,
GENEROSO SENGA, AFP CHIEF OF
STAFF, ARTURO LOMIBAO, CHIEF
PNP,
Respondents.
x-------------------------------------------------x
KILUSANG MAYO UNO,
REPRESENTED BY ITS
CHAIRPERSON ELMER C. LABOG
AND SECRETARY GENERAL JOEL
MAGLUNSOD, NATIONAL
FEDERATION OF LABOR UNIONS
KILUSANG MAYO UNO (NAFLU-
KMU), REPRESENTED BY ITS
NATIONAL PRESIDENT, JOSELITO V.
USTAREZ, ANTONIO C. PASCUAL,
SALVADOR T. CARRANZA, EMILIA
P. DAPULANG, MARTIN CUSTODIO,
JR., AND ROQUE M. TAN,
Petitioners,




- versus -




HER EXCELLENCY, PRESIDENT



















G.R. No. 171483




















GLORIA MACAPAGAL-ARROYO,
THE HONORABLE EXECUTIVE
SECRETARY, EDUARDO ERMITA,
THE CHIEF OF STAFF, ARMED
FORCES OF THE PHILIPPINES,
GENEROSO SENGA, AND THE PNP
DIRECTOR GENERAL, ARTURO
LOMIBAO,
Respondents.
x-------------------------------------------------x
ALTERNATIVE LAW GROUPS, INC.
(ALG),
Petitioner,
- versus -


EXECUTIVE SECRETARY EDUARDO
R. ERMITA, LT. GEN. GENEROSO
SENGA, AND DIRECTOR GENERAL
ARTURO LOMIBAO,
Respondents.
x-------------------------------------------------x
JOSE ANSELMO I. CADIZ, FELICIANO
M. BAUTISTA, ROMULO R. RIVERA,
JOSE AMOR M. AMORADO, ALICIA
A. RISOS-VIDAL, FELIMON C.
ABELITA III, MANUEL P. LEGASPI,
J.B. JOVY C. BERNABE, BERNARD L.
DAGCUTA, ROGELIO V. GARCIA
AND INTEGRATED BAR OF THE
PHILIPPINES (IBP),
Petitioners,

- versus -


HON. EXECUTIVE SECRETARY
EDUARDO ERMITA, GENERAL
GENEROSO SENGA, IN HIS
CAPACITY AS AFP CHIEF OF STAFF,










G.R. No. 171400















G.R. No. 171489


















AND DIRECTOR GENERAL ARTURO
LOMIBAO, IN HIS CAPACITY AS PNP
CHIEF,
Respondents.
x-------------------------------------------------x
LOREN B. LEGARDA,
Petitioner,


- versus -


GLORIA MACAPAGAL-ARROYO, IN
HER CAPACITY AS PRESIDENT AND
COMMANDER-IN-CHIEF; ARTURO
LOMIBAO, IN HIS CAPACITY AS
DIRECTOR-GENERAL OF THE
PHILIPPINE NATIONAL POLICE
(PNP); GENEROSO SENGA, IN HIS
CAPACITY AS CHIEF OF STAFF OF
THE ARMED FORCES OF THE
PHILIPPINES (AFP); AND EDUARDO
ERMITA, IN HIS CAPACITY AS
EXECUTIVE SECRETARY,
Respondents.





G.R. No. 171424


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



DECISION


SANDOVAL-GUTIERREZ, J.:


All powers need some restraint; practical adjustments rather than rigid
formula are necessary.
[1]
Superior strength the use of force cannot make
wrongs into rights. In this regard, the courts should be vigilant in safeguarding the
constitutional rights of the citizens, specifically their liberty.

Chief Justice Artemio V. Panganibans philosophy of liberty is thus most
relevant. He said: In cases involving liberty, the scales of justice should weigh
heavily against government and in favor of the poor, the oppressed, the
marginalized, the dispossessed and the weak. Laws and actions that restrict
fundamental rights come to the courts with a heavy presumption against their
constitutional validity.
[2]

These seven (7) consolidated petitions for certiorari and prohibition allege
that in issuing Presidential Proclamation No. 1017 (PP 1017) and General Order
No. 5 (G.O. No. 5), President Gloria Macapagal-Arroyo committed grave abuse of
discretion. Petitioners contend that respondent officials of the Government, in
their professed efforts to defend and preserve democratic institutions, are actually
trampling upon the very freedom guaranteed and protected by the
Constitution. Hence, such issuances are void for being unconstitutional.


Once again, the Court is faced with an age-old but persistently modern
problem. How does the Constitution of a free people combine the degree
of liberty, without which, law becomes tyranny, with the degree of law, without
which, liberty becomes license?
[3]

On February 24, 2006, as the nation celebrated the 20
th
Anniversary of
the Edsa People Power I, President Arroyo issued PP 1017 declaring a state of
national emergency, thus:

NOW, THEREFORE, I, Gloria Macapagal-Arroyo, President of the
Republic of the Philippines and Commander-in-Chief of the Armed Forces of the
Philippines, by virtue of the powers vested upon me by Section 18, Article 7 of
the Philippine Constitution which states that: The President. . . whenever it
becomes necessary, . . . may call out (the) armed forces to prevent or suppress. .
.rebellion. . ., and in my capacity as their Commander-in-Chief, do hereby
command the Armed Forces of the Philippines, to maintain law and order
throughout the Philippines, prevent or suppress all forms of lawless violence
as well as any act of insurrection or rebellion and to enforce obedience to all
the laws and to all decrees, orders and regulations promulgated by me
personally or upon my direction; and as provided in Section 17, Article 12 of
the Constitution do hereby declare a State of National Emergency.

She cited the following facts as bases:

WHEREAS, over these past months, elements in the political opposition
have conspired with authoritarians of the extreme Left represented by the
NDF-CPP-NPA and the extreme Right, represented by military adventurists
the historical enemies of the democratic Philippine State who are now in a
tactical alliance and engaged in a concerted and systematic conspiracy, over a
broad front, to bring down the duly constituted Government elected in May 2004;

WHEREAS, these conspirators have repeatedly tried to bring down the
President;

WHEREAS, the claims of these elements have been recklessly
magnified by certain segments of the national media;

WHEREAS, this series of actions is hurting the Philippine State by
obstructing governance including hindering the growth of the economy and
sabotaging the peoples confidence in government and their faith in the
future of this country;

WHEREAS, these actions are adversely affecting the economy;

WHEREAS, these activities give totalitarian forces of both the
extreme Left and extreme Right the opening to intensify their avowed aims to
bring down the democratic Philippine State;

WHEREAS, Article 2, Section 4 of the our Constitution makes the
defense and preservation of the democratic institutions and the State the primary
duty of Government;

WHEREAS, the activities above-described, their consequences,
ramifications and collateral effects constitute a clear and present danger to the
safety and the integrity of the Philippine State and of the Filipino people;


On the same day, the President issued G. O. No. 5 implementing PP 1017,
thus:

WHEREAS, over these past months, elements in the political opposition
have conspired with authoritarians of the extreme Left, represented by the NDF-
CPP-NPA and the extreme Right, represented by military adventurists - the
historical enemies of the democratic Philippine State and who are now in a
tactical alliance and engaged in a concerted and systematic conspiracy, over a
broad front, to bring down the duly-constituted Government elected in May 2004;
WHEREAS, these conspirators have repeatedly tried to bring down our
republican government;

WHEREAS, the claims of these elements have been recklessly magnified
by certain segments of the national media;

WHEREAS, these series of actions is hurting the Philippine State by
obstructing governance, including hindering the growth of the economy and
sabotaging the peoples confidence in the government and their faith in the future
of this country;

WHEREAS, these actions are adversely affecting the economy;

WHEREAS, these activities give totalitarian forces; of both the extreme
Left and extreme Right the opening to intensify their avowed aims to bring down
the democratic Philippine State;

WHEREAS, Article 2, Section 4 of our Constitution makes the defense
and preservation of the democratic institutions and the State the primary duty of
Government;

WHEREAS, the activities above-described, their consequences,
ramifications and collateral effects constitute a clear and present danger to the
safety and the integrity of the Philippine State and of the Filipino people;

WHEREAS, Proclamation 1017 date February 24, 2006 has been issued
declaring a State of National Emergency;

NOW, THEREFORE, I GLORIA MACAPAGAL-ARROYO, by
virtue of the powers vested in me under the Constitution as President of the
Republic of the Philippines, and Commander-in-Chief of the Republic of the
Philippines, and pursuant to Proclamation No. 1017 dated February 24, 2006, do
hereby call upon the Armed Forces of the Philippines (AFP) and the Philippine
National Police (PNP), to prevent and suppress acts of terrorism and lawless
violence in the country;

I hereby direct the Chief of Staff of the AFP and the Chief of the PNP, as
well as the officers and men of the AFP and PNP, to immediately carry out the
necessary and appropriate actions and measures to suppress and prevent
acts of terrorism and lawless violence.


On March 3, 2006, exactly one week after the declaration of a state of
national emergency and after all these petitions had been filed, the President lifted
PP 1017. She issued Proclamation No. 1021 which reads:
WHEREAS, pursuant to Section 18, Article VII and Section 17, Article
XII of the Constitution, Proclamation No. 1017 dated February 24, 2006, was
issued declaring a state of national emergency;

WHEREAS, by virtue of General Order No.5 and No.6 dated February
24, 2006, which were issued on the basis of Proclamation No. 1017, the Armed
Forces of the Philippines (AFP) and the Philippine National Police (PNP), were
directed to maintain law and order throughout the Philippines, prevent and
suppress all form of lawless violence as well as any act of rebellion and to
undertake such action as may be necessary;

WHEREAS, the AFP and PNP have effectively prevented, suppressed
and quelled the acts lawless violence and rebellion;

NOW, THEREFORE, I, GLORIA MACAPAGAL-
ARROYO, President of the Republic of the Philippines, by virtue of the powers
vested in me by law, hereby declare that the state of national emergency has
ceased to exist.


In their presentation of the factual bases of PP 1017 and G.O. No. 5,
respondents stated that the proximate cause behind the executive issuances was the
conspiracy among some military officers, leftist insurgents of the New Peoples
Army (NPA), and some members of the political opposition in a plot to unseat or
assassinate President Arroyo.
[4]
They considered the aim to oust or assassinate the
President and take-over the reigns of government as a clear and present danger.
During the oral arguments held on March 7, 2006, the Solicitor General
specified the facts leading to the issuance of PP 1017 and G.O. No.
5. Significantly, there was no refutation from petitioners counsels.
The Solicitor General argued that the intent of the Constitution is to give
full discretionary powers to the President in determining the necessity of calling
out the armed forces. He emphasized that none of the petitioners has shown that
PP 1017 was without factual bases. While he explained that it is not respondents
task to state the facts behind the questioned Proclamation, however, they are
presenting the same, narrated hereunder, for the elucidation of the issues.
On January 17, 2006, Captain Nathaniel Rabonza and First
Lieutenants Sonny Sarmiento, Lawrence San Juan and Patricio Bumidang,
members of the Magdalo Group indicted in the Oakwood mutiny, escaped their
detention cell in Fort Bonifacio, Taguig City. In a public statement, they vowed to
remain defiant and to elude arrest at all costs. They called upon the people to
show and proclaim our displeasure at the sham regime. Let us demonstrate our
disgust, not only by going to the streets in protest, but also by wearing red bands
on our left arms.
[5]


On February 17, 2006, the authorities got hold of a document entitled
Oplan Hackle I which detailed plans for bombings and attacks during the
Philippine Military Academy Alumni Homecoming in Baguio City. The plot was
to assassinate selected targets including some cabinet members and President
Arroyo herself.
[6]
Upon the advice of her security, President Arroyo decided not
to attend the Alumni Homecoming. The next day, at the height of the celebration,
a bomb was found and detonated at the PMA parade ground.
On February 21, 2006, Lt. San Juan was recaptured in a communist
safehouse in Batangas province. Found in his possession were two (2) flash disks
containing minutes of the meetings between members of the Magdalo Group and
the National Peoples Army (NPA), a tape recorder, audio cassette cartridges,
diskettes, and copies of subversive documents.
[7]
Prior to his arrest, Lt. San Juan
announced through DZRH that the Magdalos D-Day would be on February 24,
2006, the 20
th
Anniversary of Edsa I.
On February 23, 2006, PNP Chief Arturo Lomibao intercepted information
that members of the PNP- Special Action Force were planning to defect. Thus, he
immediately ordered SAF Commanding General Marcelino Franco, Jr.
to disavow any defection. The latter promptly obeyed and issued a public
statement: All SAF units are under the effective control of responsible and
trustworthy officers with proven integrity and unquestionable loyalty.
On the same day, at the house of former Congressman Peping Cojuangco,
President Cory Aquinos brother, businessmen and mid-level government officials
plotted moves to bring down the Arroyo administration. Nelly Sindayen of TIME
Magazine reported that Pastor Saycon, longtime Arroyo critic, called a U.S.
government official about his groups plans if President Arroyo is ousted. Saycon
also phoned a man code-named Delta. Saycon identified him as B/Gen. Danilo
Lim, Commander of the Armys elite Scout Ranger. Lim said it was all systems
go for the planned movement against Arroyo.
[8]

B/Gen. Danilo Lim and Brigade Commander Col. Ariel Querubin confided
to Gen. Generoso Senga, Chief of Staff of the Armed Forces of the Philippines
(AFP), that a huge number of soldiers would join the rallies to provide a critical
mass and armed component to the Anti-Arroyo protests to be held on February 24,
2005. According to these two (2) officers, there was no way they could possibly
stop the soldiers because they too, were breaking the chain of command to join the
forces foist to unseat the President. However, Gen. Senga has remained faithful to
his Commander-in-Chief and to the chain of command. He immediately took
custody of B/Gen. Lim and directed Col. Querubin to return to the Philippine
Marines Headquarters in Fort Bonifacio.
Earlier, the CPP-NPA called for intensification of political and revolutionary
work within the military and the police establishments in order to forge alliances
with its members and key officials. NPA spokesman Gregorio Ka Roger Rosal
declared: The Communist Party and revolutionary movement and the entire
people look forward to the possibility in the coming year of accomplishing its
immediate task of bringing down the Arroyo regime; of rendering it to weaken and
unable to rule that it will not take much longer to end it.
[9]

On the other hand, Cesar Renerio, spokesman for the National Democratic
Front (NDF) at North Central Mindanao, publicly announced: Anti-Arroyo groups
within the military and police are growing rapidly, hastened by the economic
difficulties suffered by the families of AFP officers and enlisted personnel who
undertake counter-insurgency operations in the field. He claimed that with the
forces of the national democratic movement, the anti-Arroyo conservative political
parties, coalitions, plus the groups that have been reinforcing since June 2005, it is
probable that the Presidents ouster is nearing its concluding stage in the first half
of 2006.
Respondents further claimed that the bombing of telecommunication towers
and cell sites in Bulacan and Bataan was also considered as additional factual basis
for the issuance of PP 1017 and G.O. No. 5. So is the raid of an army outpost in
Benguet resulting in the death of three (3) soldiers. And also the directive of the
Communist Party of the Philippines ordering its front organizations to join 5,000
Metro Manila radicals and 25,000 more from the provinces in mass protests.
[10]

By midnight of February 23, 2006, the President convened her security
advisers and several cabinet members to assess the gravity of the fermenting peace
and order situation. She directed both the AFP and the PNP to account for all
their men and ensure that the chain of command remains solid and undivided. To
protect the young students from any possible trouble that might break loose on the
streets, the President suspended classes in all levels in the entire National Capital
Region.
For their part, petitioners cited the events that followed after the
issuance of PP 1017 and G.O. No. 5.
Immediately, the Office of the President announced the cancellation of all
programs and activities related to the 20
th
anniversary celebration of Edsa People
Power I; and revoked the permits to hold rallies issued earlier by the local
governments. Justice Secretary Raul Gonzales stated that political rallies, which to
the Presidents mind were organized for purposes of destabilization, are
cancelled. Presidential Chief of Staff Michael Defensor announced that
warrantless arrests and take-over of facilities, including media, can already be
implemented.
[11]

Undeterred by the announcements that rallies and public assemblies would
not be allowed, groups of protesters (members of Kilusang Mayo Uno [KMU] and
National Federation of Labor Unions-Kilusang Mayo Uno [NAFLU-KMU]),
marched from various parts of Metro Manila with the intention of converging at
the EDSA shrine. Those who were already near the EDSA site were violently
dispersed by huge clusters of anti-riot police. The well-trained policemen used
truncheons, big fiber glass shields, water cannons, and tear gas to stop and break
up the marching groups, and scatter the massed participants. The same police
action was used against the protesters marching forward to Cubao, Quezon City
and to the corner of Santolan Street and EDSA. That same evening, hundreds of
riot policemen broke up an EDSA celebration rally held along Ayala Avenue and
Paseo de Roxas Street in Makati City.
[12]

According to petitioner Kilusang Mayo Uno, the police cited PP 1017 as the
ground for the dispersal of their assemblies.
During the dispersal of the rallyists along EDSA, police arrested (without
warrant) petitioner Randolf S. David, a professor at the University of the
Philippines and newspaper columnist. Also arrested was his companion, Ronald
Llamas, president of party-list Akbayan.
At around 12:20 in the early morning of February 25, 2006, operatives of the
Criminal Investigation and Detection Group (CIDG) of the PNP, on the basis of PP
1017 and G.O. No. 5, raided the Daily Tribune offices in Manila. The raiding
team confiscated news stories by reporters, documents, pictures, and mock-ups of
the Saturday issue. Policemen from Camp Crame in Quezon City were stationed
inside the editorial and business offices of the newspaper; while policemen from
the Manila Police District were stationed outside the building.
[13]

A few minutes after the search and seizure at the Daily Tribune offices, the
police surrounded the premises of another pro-opposition paper, Malaya, and its
sister publication, the tabloid Abante.
The raid, according to Presidential Chief of Staff Michael
Defensor, is meant to show a strong presence, to tell media outlets not to
connive or do anything that would help the rebels in bringing down this
government. The PNP warned that it would take over any media organization
that would not follow standards set by the government during the state of
national emergency. Director General Lomibao stated that if they do not follow
the standards and the standards are - if they would contribute to instability in the
government, or if they do not subscribe to what is in General Order No. 5 and
Proc. No. 1017 we will recommend a takeover. National
Telecommunications Commissioner Ronald Solis urged television and radio
networks to cooperate with the government for the duration of the state of
national emergency. He asked for balanced reporting from broadcasters when
covering the events surrounding the coup attempt foiled by the government. He
warned that his agency will not hesitate to recommend the closure of any broadcast
outfit that violates rules set out for media coverage when the national security is
threatened.
[14]

Also, on February 25, 2006, the police arrested Congressman Crispin
Beltran, representing the Anakpawis Party and Chairman of Kilusang Mayo
Uno (KMU), while leaving his farmhouse in Bulacan. The police showed a
warrant for his arrest dated 1985. Beltrans lawyer explained that the warrant,
which stemmed from a case of inciting to rebellion filed during the Marcos regime,
had long been quashed. Beltran, however, is not a party in any of these petitions.
When members of petitioner KMU went to Camp Crame to visit Beltran,
they were told they could not be admitted because of PP 1017 and G.O. No.
5. Two members were arrested and detained, while the rest were dispersed by the
police.
Bayan Muna Representative Satur Ocampo eluded arrest when the police
went after him during a public forum at the Sulo Hotel in Quezon City. But his
two drivers, identified as Roel and Art, were taken into custody.
Retired Major General Ramon Montao, former head of the Philippine
Constabulary, was arrested while with his wife and golfmates at the Orchard Golf
and Country Club in Dasmarias, Cavite.
Attempts were made to arrest Anakpawis Representative Satur Ocampo,
Representative Rafael Mariano, Bayan Muna Representative Teodoro Casio and
Gabriela Representative Liza Maza. Bayan Muna Representative Josel Virador
was arrested at the PAL Ticket Office in Davao City. Later, he was turned over to
the custody of the House of Representatives where the Batasan 5 decided to stay
indefinitely.
Let it be stressed at this point that the alleged violations of the rights of
Representatives Beltran, Satur Ocampo, et al., are not being raised in these
petitions.
On March 3, 2006, President Arroyo issued PP 1021 declaring that the state
of national emergency has ceased to exist.
In the interim, these seven (7) petitions challenging the constitutionality of
PP 1017 and G.O. No. 5 were filed with this Court against the above-named
respondents. Three (3) of these petitions impleaded President Arroyo as
respondent.
In G.R. No. 171396, petitioners Randolf S. David, et al. assailed PP 1017 on
the grounds that (1) it encroaches on the emergency powers of Congress; (2) it is a
subterfuge to avoid the constitutional requirements for the imposition of martial
law; and (3) it violates the constitutional guarantees of freedom of the press, of
speech and of assembly.
In G.R. No. 171409, petitioners Ninez Cacho-Olivares
and Tribune Publishing Co., Inc. challenged the CIDGs act of raiding the Daily
Tribune offices as a clear case of censorship or prior restraint. They also
claimed that the term emergency refers only to tsunami, typhoon, hurricane and
similar occurrences, hence, there is absolutely no emergency that warrants the
issuance of PP 1017.
In G.R. No. 171485, petitioners herein are Representative Francis Joseph G.
Escudero, and twenty one (21) other members of the House of Representatives,
including Representatives Satur Ocampo, Rafael Mariano, Teodoro Casio, Liza
Maza, and Josel Virador. They asserted that PP 1017 and G.O. No. 5 constitute
usurpation of legislative powers; violation of freedom of expression and a
declaration of martial law. They alleged that President Arroyo gravely abused
her discretion in calling out the armed forces without clear and verifiable factual
basis of the possibility of lawless violence and a showing that there is necessity to
do so.
In G.R. No. 171483, petitioners KMU, NAFLU-KMU, and their members
averred that PP 1017 and G.O. No. 5 are unconstitutional because (1) they arrogate
unto President Arroyo the power to enact laws and decrees; (2) their issuance was
without factual basis; and (3) they violate freedom of expression and the right of
the people to peaceably assemble to redress their grievances.
In G.R. No. 171400, petitioner Alternative Law Groups, Inc. (ALGI) alleged
that PP 1017 and G.O. No. 5 are unconstitutional because they violate (a) Section
4
[15]
of Article II, (b) Sections 1,
[16]
2,
[17]
and 4
[18]
of Article III,

(c) Section 23
[19]
of
Article VI, and (d) Section 17
[20]
of Article XII of the Constitution.
In G.R. No. 171489, petitioners Jose Anselmo I. Cadiz et al., alleged that PP
1017 is an arbitrary and unlawful exercise by the President of her Martial Law
powers. And assuming that PP 1017 is not really a declaration of Martial Law,
petitioners argued that it amounts to an exercise by the President of emergency
powers without congressional approval. In addition, petitioners asserted that PP
1017 goes beyond the nature and function of a proclamation as defined under the
Revised Administrative Code.
And lastly, in G.R. No. 171424, petitioner Loren B. Legarda maintained that
PP 1017 and G.O. No. 5 are unconstitutional for being violative of the freedom of
expression, including its cognate rights such as freedom of the press and the right
to access to information on matters of public concern, all guaranteed under Article
III, Section 4 of the 1987 Constitution. In this regard, she stated that these
issuances prevented her from fully prosecuting her election protest pending before
the Presidential Electoral Tribunal.
In respondents Consolidated Comment, the Solicitor General countered
that: first, the petitions should be dismissed for
being moot; second, petitioners in G.R. Nos. 171400 (ALGI), 171424
(Legarda), 171483 (KMU et al.), 171485 (Escudero et al.) and 171489 (Cadiz et
al.) have no legal standing; third, it is not necessary for petitioners to implead
President Arroyo as respondent; fourth, PP 1017 has constitutional and legal
basis; and fifth, PP 1017 does not violate the peoples right to free expression and
redress of grievances.
On March 7, 2006, the Court conducted oral arguments and heard the parties
on the above interlocking issues which may be summarized as follows:
A. PROCEDURAL:
1) Whether the issuance of PP 1021 renders the petitions
moot and academic.
2) Whether petitioners in 171485 (Escudero et al.), G.R. Nos.
171400 (ALGI), 171483 (KMU et al.), 171489 (Cadiz et al.),
and 171424 (Legarda) have legal standing.
B. SUBSTANTIVE:
1) Whether the Supreme Court can review the factual bases of
PP 1017.
2) Whether PP 1017 and G.O. No. 5 are unconstitutional.
a. Facial Challenge
b. Constitutional Basis
c. As Applied Challenge

A. PROCEDURAL

First, we must resolve the procedural roadblocks.
I - Moot and Academic Principle
One of the greatest contributions of the American system to this country is
the concept of judicial review enunciated in Marbury v. Madison.
[21]
This concept
rests on the extraordinary simple foundation --
The Constitution is the supreme law. It was ordained by the people, the
ultimate source of all political authority. It confers limited powers on the national
government. x x x If the government consciously or unconsciously oversteps
these limitations there must be some authority competent to hold it in
control, to thwart its unconstitutional attempt, and thus to vindicate and
preserve inviolate the will of the people as expressed in the Constitution. This
power the courts exercise. This is the beginning and the end of the theory of
judicial review.
[22]


But the power of judicial review does not repose upon the courts a self-
starting capacity.
[23]
Courts may exercise such power only when the following
requisites are present: first, there must be an actual case or
controversy; second, petitioners have to raise a question of
constitutionality; third, the constitutional question must be raised at the earliest
opportunity; and fourth, the decision of the constitutional question must be
necessary to the determination of the case itself.
[24]

Respondents maintain that the first and second requisites are absent, hence,
we shall limit our discussion thereon.
An actual case or controversy involves a conflict of legal right, an opposite
legal claims susceptible of judicial resolution. It is definite and concrete,
touching the legal relations of parties having adverse legal interest; a real and
substantial controversy admitting of specific relief.
[25]
The Solicitor General
refutes the existence of such actual case or controversy, contending that the present
petitions were rendered moot and academic by President Arroyos issuance of
PP 1021.
Such contention lacks merit.
A moot and academic case is one that ceases to present a justiciable
controversy by virtue of supervening events,
[26]
so that a declaration thereon would
be of no practical use or value.
[27]
Generally, courts decline jurisdiction over such
case
[28]
or dismiss it on ground of mootness.
[29]

The Court holds that President Arroyos issuance of PP 1021 did not render
the present petitions moot and academic. During the eight (8) days that PP 1017
was operative, the police officers, according to petitioners, committed illegal acts
in implementing it. Are PP 1017 and G.O. No. 5 constitutional or valid? Do
they justify these alleged illegal acts? These are the vital issues that must be
resolved in the present petitions. It must be stressed that an unconstitutional act
is not a law, it confers no rights, it imposes no duties, it affords no protection;
it is in legal contemplation, inoperative.
[30]

The moot and academic principle is not a magical formula that can
automatically dissuade the courts in resolving a case. Courts will decide cases,
otherwise moot and academic, if: first, there is a grave violation of the
Constitution;
[31]
second, the exceptional character of the situation and the
paramount public interest is involved;
[32]
third,when constitutional issue raised
requires formulation of controlling principles to guide the bench, the bar, and the
public;
[33]
and fourth, the case is capable of repetition yet evading review.
[34]

All the foregoing exceptions are present here and justify this Courts
assumption of jurisdiction over the instant petitions. Petitioners alleged that the
issuance of PP 1017 and G.O. No. 5 violates the Constitution. There is no question
that the issues being raised affect the publics interest, involving as they do the
peoples basic rights to freedom of expression, of assembly and of the
press. Moreover, the Court has the duty to formulate guiding and controlling
constitutional precepts, doctrines or rules. It has the symbolic function of
educating the bench and the bar, and in the present petitions, the military and the
police, on the extent of the protection given by constitutional guarantees.
[35]
And
lastly, respondents contested actions are capable of repetition. Certainly, the
petitions are subject to judicial review.
In their attempt to prove the alleged mootness of this case, respondents cited
Chief Justice Artemio V. Panganibans Separate Opinion in Sanlakas v. Executive
Secretary.
[36]
However, they failed to take into account the Chief Justices very
statement that an otherwise moot case may still be decided provided the party
raising it in a proper case has been and/or continues to be prejudiced or damaged
as a direct result of its issuance. The present case falls right within this
exception to the mootness rule pointed out by the Chief Justice.
I I - Legal Standing
In view of the number of petitioners suing in various personalities, the Court
deems it imperative to have a more than passing discussion on legal standing
or locus standi.

Locus standi is defined as a right of appearance in a court of justice on a
given question.
[37]
In private suits, standing is governed by the real-parties-in
interest rule as contained in Section 2, Rule 3 of the 1997 Rules of Civil
Procedure, as amended. It provides that every action must be prosecuted or
defended in the name of the real party in interest. Accordingly, the real-
party-in interest is the party who stands to be benefited or injured by the
judgment in the suit or the party entitled to the avails of the
suit.
[38]
Succinctly put, the plaintiffs standing is based on his own right to the
relief sought.


The difficulty of determining locus standi arises in public suits. Here,
the plaintiff who asserts a public right in assailing an allegedly illegal official
action, does so as a representative of the general public. He may be a person who
is affected no differently from any other person. He could be suing as a stranger,
or in the category of a citizen, or taxpayer. In either case, he has to adequately
show that he is entitled to seek judicial protection. In other words, he has to make
out a sufficient interest in the vindication of the public order and the securing of
relief as a citizen or taxpayer.
Case law in most jurisdictions now allows both citizen and taxpayer
standing in public actions. The distinction was first laid down in Beauchamp v.
Silk,
[39]
where it was held that the plaintiff in a taxpayers suit is in a different
category from the plaintiff in a citizens suit. In the former, the plaintiff is
affected by the expenditure of public funds, while in the latter, he is but the
mere instrument of the public concern. As held by the New York Supreme
Court in People ex rel Case v. Collins:
[40]
In matter of mere public right,
howeverthe people are the real partiesIt is at least the right, if not the
duty, of every citizen to interfere and see that a public offence be properly
pursued and punished, and that a public grievance be remedied. With
respect to taxpayers suits, Terr v. Jordan
[41]
held that the right of a citizen and
a taxpayer to maintain an action in courts to restrain the unlawful use of
public funds to his injury cannot be denied.
However, to prevent just about any person from seeking judicial interference
in any official policy or act with which he disagreed with, and thus hinders the
activities of governmental agencies engaged in public service, the United State
Supreme Court laid down the more stringent direct injury test in Ex Parte
Levitt,
[42]
later reaffirmed inTileston v. Ullman.
[43]
The same Court ruled that for a
private individual to invoke the judicial power to determine the validity of an
executive or legislative action, he must show that he has sustained a direct
injury as a result of that action, and it is not sufficient that he has a general
interest common to all members of the public.
This Court adopted the direct injury test in our jurisdiction. In People v.
Vera,
[44]
it held that the person who impugns the validity of a statute must have a
personal and substantial interest in the case such that he has sustained, or will
sustain direct injury as a result. The Vera doctrine was upheld in a litany of
cases, such as, Custodio v. President of the Senate,
[45]
Manila Race Horse
Trainers Association v. De la Fuente,
[46]
Pascual v. Secretary of Public
Works
[47]
and Anti-Chinese League of the Philippines v. Felix.
[48]

However, being a mere procedural technicality, the requirement of locus
standi may be waived by the Court in the exercise of its discretion. This was done
in the 1949 Emergency Powers Cases, Araneta v. Dinglasan,
[49]
where the
transcendental importance of the cases prompted the Court to act
liberally. Such liberality was neither a rarity nor accidental. In Aquino v.
Comelec,
[50]
this Court resolved to pass upon the issues raised due to the far-
reaching implications of the petition notwithstanding its categorical statement
that petitioner therein had no personality to file the suit. Indeed, there is a chain of
cases where this liberal policy has been observed, allowing ordinary citizens,
members of Congress, and civic organizations to prosecute actions involving the
constitutionality or validity of laws, regulations and rulings.
[51]

Thus, the Court has adopted a rule that even where the petitioners have failed
to show direct injury, they have been allowed to sue under the principle of
transcendental importance. Pertinent are the following cases:
(1) Chavez v. Public Estates Authority,
[52]
where the Court ruled
that the enforcement of the constitutional right to information and
the equitable diffusion of natural resources are matters of
transcendental importance which clothe the petitioner with locus
standi;

(2) Bagong Alyansang Makabayan v. Zamora,
[53]
wherein the
Court held that given the transcendental importance of the issues
involved, the Court may relax the standing requirements and
allow the suit to prosper despite the lack of direct injury to the
parties seeking judicial review of the Visiting Forces Agreement;

(3) Lim v. Executive Secretary,
[54]
while the Court noted that
the petitioners may not file suit in their capacity as taxpayers absent a
showing that Balikatan 02-01 involves the exercise of Congress
taxing or spending powers, it reiterated its ruling in Bagong
Alyansang Makabayan v. Zamora,
[55]
that in cases of transcendental
importance, the cases must be settled promptly and definitely and
standing requirements may be relaxed.

By way of summary, the following rules may be culled from the cases
decided by this Court. Taxpayers, voters, concerned citizens, and legislators may
be accorded standing to sue, provided that the following requirements are met:
(1) the cases involve constitutional issues;
(2) for taxpayers, there must be a claim of illegal disbursement of
public funds or that the tax measure is unconstitutional;
(3) for voters, there must be a showing of obvious interest in the
validity of the election law in question;
(4) for concerned citizens, there must be a showing that the issues
raised are of transcendental importance which must be settled early; and
(5) for legislators, there must be a claim that the official action
complained of infringes upon their prerogatives as legislators.
Significantly, recent decisions show a certain toughening in the Courts
attitude toward legal standing.
In Kilosbayan, Inc. v. Morato,
[56]
the Court ruled that the status
of Kilosbayan as a peoples organization does not give it the requisite personality
to question the validity of the on-line lottery contract, more so where it does not
raise any issue of constitutionality. Moreover, it cannot sue as a taxpayer absent
any allegation that public funds are being misused. Nor can it sue as a concerned
citizen as it does not allege any specific injury it has suffered.
In Telecommunications and Broadcast Attorneys of the Philippines, Inc. v.
Comelec,
[57]
the Court reiterated the direct injury test with respect to concerned
citizens cases involving constitutional issues. It held that there must be a
showing that the citizen personally suffered some actual or threatened injury
arising from the alleged illegal official act.
In Lacson v. Perez,
[58]
the Court ruled that one of the petitioners, Laban ng
Demokratikong Pilipino (LDP), is not a real party-in-interest as it had not
demonstrated any injury to itself or to its leaders, members or supporters.
In Sanlakas v. Executive Secretary,
[59]
the Court ruled that only the
petitioners who are members of Congress have standing to sue, as they claim that
the Presidents declaration of a state of rebellion is a usurpation of the
emergency powers of Congress, thus impairing their legislative powers. As to
petitioners Sanlakas, Partido Manggagawa, and Social Justice Society, the Court
declared them to be devoid of standing, equating them with the LDP in Lacson.
Now, the application of the above principles to the present petitions.
The locus standi of petitioners in G.R. No. 171396, particularly David and
Llamas, is beyond doubt. The same holds true with petitioners in G.R. No.
171409, Cacho-Olivares and Tribune Publishing Co. Inc. They alleged direct
injury resulting from illegal arrest and unlawful search committed by police
operatives pursuant to PP 1017. Rightly so, the Solicitor General does not question
their legal standing.
In G.R. No. 171485, the opposition Congressmen alleged there was
usurpation of legislative powers. They also raised the issue of whether or not the
concurrence of Congress is necessary whenever the alarming powers incident to
Martial Law are used. Moreover, it is in the interest of justice that those affected
by PP 1017 can be represented by their Congressmen in bringing to the attention of
the Court the alleged violations of their basic rights.
In G.R. No. 171400, (ALGI), this Court applied the liberality rule
in Philconsa v. Enriquez,
[60]
Kapatiran Ng Mga Naglilingkod sa Pamahalaan ng
Pilipinas, Inc. v. Tan,
[61]
Association of Small Landowners in the Philippines, Inc.
v. Secretary of Agrarian Reform,
[62]
Basco v. Philippine Amusement and Gaming
Corporation,
[63]
and Taada v. Tuvera,
[64]
that when the issue concerns a public
right, it is sufficient that the petitioner is a citizen and has an interest in the
execution of the laws.
In G.R. No. 171483, KMUs assertion that PP 1017 and G.O. No. 5
violated its right to peaceful assembly may be deemed sufficient to give it legal
standing. Organizations may be granted standing to assert the rights of their
members.
[65]
We take judicial notice of the announcement by the Office of the
President banning all rallies and canceling all permits for public assemblies
following the issuance of PP 1017 and G.O. No. 5.
In G.R. No. 171489, petitioners, Cadiz et al., who are national officers of
the Integrated Bar of the Philippines (IBP) have no legal standing, having failed to
allege any direct or potential injury which the IBP as an institution or its members
may suffer as a consequence of the issuance of PP No. 1017 and G.O. No.
5. In Integrated Bar of the Philippines v. Zamora,
[66]
the Court held that the mere
invocation by the IBP of its duty to preserve the rule of law and nothing more,
while undoubtedly true, is not sufficient to clothe it with standing in this
case. This is too general an interest which is shared by other groups and the whole
citizenry. However, in view of the transcendental importance of the issue, this
Court declares that petitioner have locus standi.
In G.R. No. 171424, Loren Legarda has no personality as a taxpayer to file
the instant petition as there are no allegations of illegal disbursement of public
funds. The fact that she is a former Senator is of no consequence. She can no
longer sue as a legislator on the allegation that her prerogatives as a lawmaker have
been impaired by PP 1017 and G.O. No. 5. Her claim that she is a media
personality will not likewise aid her because there was no showing that the
enforcement of these issuances prevented her from pursuing her occupation. Her
submission that she has pending electoral protest before the Presidential Electoral
Tribunal is likewise of no relevance. She has not sufficiently shown that PP 1017
will affect the proceedings or result of her case. But considering once more the
transcendental importance of the issue involved, this Court may relax the standing
rules.
It must always be borne in mind that the question of locus standi is but
corollary to the bigger question of proper exercise of judicial power. This is the
underlying legal tenet of the liberality doctrine on legal standing. It cannot be
doubted that the validity of PP No. 1017 and G.O. No. 5 is a judicial question
which is of paramount importance to the Filipino people. To paraphrase Justice
Laurel, the whole of Philippine society now waits with bated breath the ruling of
this Court on this very critical matter. The petitions thus call for the application of
the transcendental importance doctrine, a relaxation of the standing
requirements for the petitioners in the PP 1017 cases.

This Court holds that all the petitioners herein have locus standi.

Incidentally, it is not proper to implead President Arroyo as
respondent. Settled is the doctrine that the President, during his tenure of office or
actual incumbency,
[67]
may not be sued in any civil or criminal case, and there is no
need to provide for it in the Constitution or law. It will degrade the dignity of the
high office of the President, the Head of State, if he can be dragged into court
litigations while serving as such. Furthermore, it is important that he be freed
from any form of harassment, hindrance or distraction to enable him to fully attend
to the performance of his official duties and functions. Unlike the legislative and
judicial branch, only one constitutes the executive branch and anything which
impairs his usefulness in the discharge of the many great and important duties
imposed upon him by the Constitution necessarily impairs the operation of the
Government. However, this does not mean that the President is not accountable to
anyone. Like any other official, he remains accountable to the people
[68]
but he
may be removed from office only in the mode provided by law and that is by
impeachment.
[69]


B. SUBSTANTIVE
I . Review of Factual Bases

Petitioners maintain that PP 1017 has no factual basis. Hence, it was not
necessary for President Arroyo to issue such Proclamation.
The issue of whether the Court may review the factual bases of the
Presidents exercise of his Commander-in-Chief power has reached its distilled
point - from the indulgent days of Barcelon v.
Baker
[70]
and Montenegro v. Castaneda
[71]
to the volatile era
of Lansang v. Garcia,
[72]
Aquino, Jr. v. Enrile,
[73]
and Garcia-Padilla v.
Enrile.
[74]
The tug-of-war always cuts across the line defining political
questions, particularly those questions in regard to which full discretionary
authority has been delegated to the legislative or executive branch of the
government.
[75]
Barcelon and Montenegro were in unison in declaring that
the authority to decide whether an exigency has arisen belongs to the
President and his decision is final and conclusive on the courts. Lansang took
the opposite view. There, the members of the Court were unanimous in the
conviction that the Court has the authority to inquire into the existence of factual
bases in order to determine their constitutional sufficiency. From the principle of
separation of powers, it shifted the focus to the system of checks and balances,
under which the President is supreme, x x x only if and when he acts within
the sphere allotted to him by the Basic Law, and the authority to
determine whether or not he has so acted is vested in the Judicial
Department,which in this respect, is, in turn,
constitutionally supreme.
[76]
In 1973, the unanimous Court of Lansang was
divided in Aquino v. Enrile.
[77]
There, the Court was almost evenly
divided on the issue of whether the validity of the imposition of
Martial Law is a political or justiciable question.
[78]
Then came Garcia-Padilla v.
Enrile which greatly diluted Lansang. It declared that there is a need to re-
examine the latter case, ratiocinating that in times of war or national
emergency, the President must be given absolute control for the very life of
the nation and the government is in great peril. The President, it intoned, is
answerable only to his conscience, the People, and God.
[79]

The Integrated Bar of the Philippines v. Zamora
[80]
-- a recent case most
pertinent to these cases at bar -- echoed a principle similar to Lansang. While the
Court considered the Presidents calling-out power as a discretionary power
solely vested in his wisdom, it stressed that this does not prevent an
examination of whether such power was exercised within permissible
constitutional limits or whether it was exercised in a manner constituting
grave abuse of discretion. This ruling is mainly a result of the Courts reliance
on Section 1, Article VIII of 1987 Constitution which fortifies the authority of the
courts to determine in an appropriate action the validity of the acts of the political
departments. Under the new definition of judicial power, the courts are authorized
not only to settle actual controversies involving rights which are legally
demandable and enforceable, but also to determine whether or not there has
been a grave abuse of discretion amounting to lack or excess of jurisdiction on
the part of any branch or instrumentality of the government. The latter part
of the authority represents a broadening of judicial power to enable the courts of
justice to review what was before a forbidden territory, to wit, the discretion of
the political departments of the government.
[81]
It speaks of judicial prerogative
not only in terms of power but also ofduty.
[82]


As to how the Court may inquire into the Presidents exercise of
power, Lansang adopted the test that judicial inquiry can go no further than to
satisfy the Court not that the Presidents decision is correct, but that the
President did not act arbitrarily. Thus, the standard laid down is not correctness,
but arbitrariness.
[83]
In Integrated Bar of the Philippines, this Court further ruled
that it is incumbent upon the petitioner to show that the Presidents decision
is totally bereft of factual basis and that if he fails, by way of proof, to support
his assertion, then this Court cannot undertake an independent investigation
beyond the pleadings.

Petitioners failed to show that President Arroyos exercise of the calling-out
power, by issuing PP 1017, is totally bereft of factual basis. A reading of the
Solicitor Generals Consolidated Comment and Memorandum shows a detailed
narration of the events leading to the issuance of PP 1017, with supporting reports
forming part of the records. Mentioned are the escape of the Magdalo Group, their
audacious threat of the Magdalo D-Day, the defections in the military, particularly
in the Philippine Marines, and the reproving statements from the communist
leaders. There was also the Minutes of the Intelligence Report and Security Group
of the Philippine Army showing the growing alliance between the NPA and the
military. Petitioners presented nothing to refute such events. Thus, absent any
contrary allegations, the Court is convinced that the President was justified in
issuing PP 1017 calling for military aid.



Indeed, judging the seriousness of the incidents, President Arroyo was not
expected to simply fold her arms and do nothing to prevent or suppress what she
believed was lawless violence, invasion or rebellion. However, the exercise of
such power or duty must not stifle liberty.

I I . Constitutionality of PP 1017 and G.O. No. 5

Doctrines of Several Political Theorists
on the Power of the President
in Times of Emergency


This case brings to fore a contentious subject -- the power of the President in
times of emergency. A glimpse at the various political theories relating to this
subject provides an adequate backdrop for our ensuing discussion.


John Locke, describing the architecture of civil government, called upon the
English doctrine of prerogative to cope with the problem of emergency. In times
of danger to the nation, positive law enacted by the legislature might be inadequate
or even a fatal obstacle to the promptness of action necessary to avert
catastrophe. In these situations, the Crown retained a prerogative power to act
according to discretion for the public good, without the proscription of the law
and sometimes even against it.
[84]
But Locke recognized that this moral restraint
might not suffice to avoid abuse of prerogative powers. Who shall judge the
need for resorting to the prerogative and how may its abuse be
avoided? Here, Locke readily admitted defeat, suggesting that the people have
no other remedy in this, as in all other cases where they have no judge on
earth, but to appeal to Heaven.
[85]



Jean-Jacques Rousseau also assumed the need for temporary suspension of
democratic processes of government in time of emergency. According to him:
The inflexibility of the laws, which prevents them from adopting
themselves to circumstances, may, in certain cases, render them disastrous and
make them bring about, at a time of crisis, the ruin of the State

It is wrong therefore to wish to make political institutions as strong as to
render it impossible to suspend their operation. Even Sparta allowed its law to
lapse...

If the peril is of such a kind that the paraphernalia of the laws are an
obstacle to their preservation, the method is to nominate a supreme lawyer, who
shall silence all the laws and suspend for a moment the sovereign authority. In
such a case, there is no doubt about the general will, and it clear that the peoples
first intention is that the State shall not perish.
[86]



Rosseau did not fear the abuse of the emergency dictatorship or supreme
magistracy as he termed it. For him, it would more likely be cheapened by
indiscreet use. He was unwilling to rely upon an appeal to heaven. Instead,
he relied upon a tenure of office of prescribed duration to avoid perpetuation of the
dictatorship.
[87]



John Stuart Mill concluded his ardent defense of representative government:
I am far from condemning, in cases of extreme necessity, the assumption of
absolute power in the form of a temporary dictatorship.
[88]


Nicollo Machiavellis view of emergency powers, as one element in the
whole scheme of limited government, furnished an ironic contrast to the Lockean
theory of prerogative. He recognized and attempted to bridge this chasm in
democratic political theory, thus:
Now, in a well-ordered society, it should never be necessary to resort to
extra constitutional measures; for although they may for a time be beneficial, yet
the precedent is pernicious, for if the practice is once established for good objects,
they will in a little while be disregarded under that pretext but for evil purposes.
Thus, no republic will ever be perfect if she has not by law provided for
everything, having a remedy for every emergency and fixed rules for applying
it.
[89]



Machiavelli in contrast to Locke, Rosseau and Mill sought to incorporate
into the constitution a regularized system of standby emergency powers to be
invoked with suitable checks and controls in time of national danger. He
attempted forthrightly to meet the problem of combining a capacious reserve of
power and speed and vigor in its application in time of emergency, with effective
constitutional restraints.
[90]


Contemporary political theorists, addressing themselves to the problem of
response to emergency by constitutional democracies, have employed the doctrine
of constitutional dictatorship.
[91]
Frederick M. Watkins saw no reason why
absolutism should not be used as a means for the defense of liberal
institutions, provided it serves to protect established institutions from the
danger of permanent injury in a period of temporary emergency and is
followed by a prompt return to the previous forms of political life.
[92]
He
recognized the two (2) key elements of the problem of emergency governance, as
well as all constitutional governance: increasing administrative powers of the
executive, while at the same time imposing limitation upon that
power.
[93]
Watkins placed his real faith in a scheme of constitutional
dictatorship. These are the conditions of success of such a dictatorship: The
period of dictatorship must be relatively shortDictatorship should always be
strictly legitimate in characterFinal authority to determine the need for
dictatorship in any given case must never rest with the dictator
himself
[94]
and the objective of such an emergency dictatorship should be
strict political conservatism.

Carl J. Friedrich cast his analysis in terms similar to those of
Watkins.
[95]
It is a problem of concentrating power in a government where
power has consciously been divided to cope with situations of unprecedented
magnitude and gravity. There must be a broad grant of powers, subject to equally
strong limitations as to who shall exercise such powers, when, for how long, and to
what end.
[96]
Friedrich, too, offered criteria for judging the adequacy of any of
scheme of emergency powers, to wit: The emergency executive must be
appointed by constitutional means i.e., he must be legitimate; he should not
enjoy power to determine the existence of an emergency; emergency powers
should be exercised under a strict time limitation; and last, the objective of
emergency action must be the defense of the constitutional order.
[97]


Clinton L. Rossiter, after surveying the history of the employment of
emergency powers in Great Britain, France, Weimar, Germany and the United
States, reverted to a description of a scheme of constitutional dictatorship as
solution to the vexing problems presented by emergency.
[98]
Like Watkins and
Friedrich, he stated a priori the conditions of success of the constitutional
dictatorship, thus:
1) No general regime or particular institution of constitutional
dictatorship should be initiated unless it is necessary or even indispensable
to the preservation of the State and its constitutional order

2) the decision to institute a constitutional dictatorship should
never be in the hands of the man or men who will constitute the dictator

3) No government should initiate a constitutional dictatorship
without making specific provisions for its termination

4) all uses of emergency powers and all readjustments in the
organization of the government should be effected in pursuit of
constitutional or legal requirements

5) no dictatorial institution should be adopted, no right
invaded, no regular procedure altered any more than is absolutely
necessary for the conquest of the particular crisis . . .

6) The measures adopted in the prosecution of the a constitutional
dictatorship should never be permanent in character or effect

7) The dictatorship should be carried on by persons representative
of every part of the citizenry interested in the defense of the existing
constitutional order. . .

8) Ultimate responsibility should be maintained for every action
taken under a constitutional dictatorship. . .

9) The decision to terminate a constitutional dictatorship, like the
decision to institute one should never be in the hands of the man or men
who constitute the dictator. . .

10) No constitutional dictatorship should extend beyond the
termination of the crisis for which it was instituted

11) the termination of the crisis must be followed by a complete
return as possible to the political and governmental conditions existing
prior to the initiation of the constitutional dictatorship
[99]



Rossiter accorded to legislature a far greater role in the oversight exercise of
emergency powers than did Watkins. He would secure to Congress final
responsibility for declaring the existence or termination of an emergency, and he
places great faith in the effectiveness of congressional investigating
committees.
[100]

Scott and Cotter, in analyzing the above contemporary theories in light of
recent experience, were one in saying that, the suggestion that democracies
surrender the control of government to an authoritarian ruler in time of grave
danger to the nation is not based upon sound constitutional theory. To
appraise emergency power in terms of constitutional dictatorship serves merely to
distort the problem and hinder realistic analysis. It matters not whether the term
dictator is used in its normal sense (as applied to authoritarian rulers) or is
employed to embrace all chief executives administering emergency powers.
However used, constitutional dictatorship cannot be divorced from the
implication of suspension of the processes of constitutionalism. Thus, they
favored instead the concept of constitutionalism articulated by Charles H.
McIlwain:

A concept of constitutionalism which is less misleading in the analysis of
problems of emergency powers, and which is consistent with the findings of this
study, is that formulated by Charles H. McIlwain. While it does not by any means
necessarily exclude some indeterminate limitations upon the substantive powers
of government, full emphasis is placed upon procedural limitations,
and political responsibility. McIlwain clearly recognized the need to repose
adequate power in government. And in discussing the meaning of
constitutionalism, he insisted that the historical and proper test of
constitutionalism was the existence of adequate processes for keeping
government responsible. He refused to equate constitutionalism with the
enfeebling of government by an exaggerated emphasis upon separation of powers
and substantive limitations on governmental power. He found that the really
effective checks on despotism have consisted not in the weakening of government
but, but rather in the limiting of it; between which there is a great and very
significant difference. In associating constitutionalism with limited as
distinguished from weak government, McIlwain meant government
limited to the orderly procedure of law as opposed to the processes of force.
The two fundamental correlative elements of constitutionalism for which all
lovers of liberty must yet fight are the legal limits to arbitrary power and a
complete political responsibility of government to the governed.
[101]


In the final analysis, the various approaches to emergency of the above
political theorists - from Locks theory of prerogative, to Watkins doctrine of
constitutional dictatorship and, eventually, to McIlwains principle of
constitutionalism --- ultimately aim to solve one real problem in emergency
governance, i.e., that of allotting increasing areas of discretionary power to the
Chief Executive, while insuring that such powers will be exercised with a sense
of political responsibility and under effective limitations and checks.

Our Constitution has fairly coped with this problem. Fresh from the fetters
of a repressive regime, the 1986 Constitutional Commission, in drafting the 1987
Constitution, endeavored to create a government in the concept of Justice
Jacksons balanced power structure.
[102]
Executive, legislative, and judicial
powers are dispersed to the President, the Congress, and the Supreme Court,
respectively. Each is supreme within its own sphere. But none has the monopoly
of power in times of emergency. Each branch is given a role to serve as
limitation or check upon the other. This system does not weaken the
President, it just limits his power, using the language of McIlwain. In other
words, in times of emergency, our Constitution reasonably demands that we repose
a certain amount of faith in the basic integrity and wisdom of the Chief Executive
but, at the same time, it obliges him to operate within carefully prescribed
procedural limitations.

a. Facial Challenge


Petitioners contend that PP 1017 is void on its face because of its
overbreadth. They claim that its enforcement encroached on both unprotected
and protected rights under Section 4, Article III of the Constitution and sent a
chilling effect to the citizens.

A facial review of PP 1017, using the overbreadth doctrine, is uncalled for.


First and foremost, the overbreadth doctrine is an analytical tool developed
for testing on their faces statutes in free speech cases, also known under the
American Law as First Amendment cases.
[103]



A plain reading of PP 1017 shows that it is not primarily directed to speech
or even speech-related conduct. It is actually a call upon the AFP to prevent or
suppress all forms of lawless violence. In United States v. Salerno,
[104]
the US
Supreme Court held that we have not recognized an overbreadth doctrine
outside the limited context of the First Amendment (freedom of speech).


Moreover, the overbreadth doctrine is not intended for testing the validity of
a law that reflects legitimate state interest in maintaining comprehensive control
over harmful, constitutionally unprotected conduct. Undoubtedly, lawless
violence, insurrection and rebellion are considered harmful and constitutionally
unprotected conduct. InBroadrick v. Oklahoma,
[105]
it was held:

It remains a matter of no little difficulty to determine when a law may
properly be held void on its face and when such summary action is
inappropriate. But the plain import of our cases is, at the very least, that
facial overbreadth adjudication is an exception to our traditional rules of
practice and that its function, a limited one at the outset, attenuates as the
otherwise unprotected behavior that it forbids the State to sanction moves
from pure speech toward conduct and that conduct even if expressive
falls within the scope of otherwise valid criminal laws that reflect legitimate
state interests in maintaining comprehensive controls over harmful,
constitutionally unprotected conduct.


Thus, claims of facial overbreadth are entertained in cases involving statutes
which, by their terms, seek to regulate only spoken words and again, that
overbreadth claims, if entertained at all, have been curtailed when invoked
against ordinary criminal laws that are sought to be applied to protected
conduct.
[106]
Here, the incontrovertible fact remains that PP 1017 pertains to a
spectrum of conduct, not free speech, which is manifestly subject to state
regulation.


Second, facial invalidation of laws is considered as manifestly strong
medicine, to be used sparingly and only as a last resort, and is generally
disfavored;
[107]
The reason for this is obvious. Embedded in the traditional rules
governing constitutional adjudication is the principle that a person to whom a law
may be applied will not be heard to challenge a law on the ground that it may
conceivably be applied unconstitutionally to others, i.e., in other situations not
before the Court.
[108]
A writer and scholar in Constitutional Law explains further:

The most distinctive feature of the overbreadth technique is that it
marks an exception to some of the usual rules of constitutional
litigation. Ordinarily, a particular litigant claims that a statute is
unconstitutional as applied to him or her; if the litigant prevails, the courts
carve away the unconstitutional aspects of the law by invalidating its
improper applications on a case to case basis. Moreover, challengers to a law
are not permitted to raise the rights of third parties and can only assert their
own interests. In overbreadth analysis, those rules give way; challenges are
permitted to raise the rights of third parties; and the court invalidates the entire
statute on its face, not merely as applied for so that the overbroad law
becomes unenforceable until a properly authorized court construes it more
narrowly. The factor that motivates courts to depart from the normal adjudicatory
rules is the concern with the chilling; deterrent effect of the overbroad statute
on third parties not courageous enough to bring suit. The Court assumes that an
overbroad laws very existence may cause others not before the court to refrain
from constitutionally protected speech or expression. An overbreadth ruling is
designed to remove that deterrent effect on the speech of those third parties.


In other words, a facial challenge using the overbreadth doctrine will require
the Court to examine PP 1017 and pinpoint its flaws and defects, not on the basis
of its actual operation to petitioners, but on the assumption or prediction that its
very existence may cause others not before the Court to refrain from
constitutionally protected speech or expression. In Younger v. Harris,
[109]
it was
held that:

[T]he task of analyzing a proposed statute, pinpointing its deficiencies,
and requiring correction of these deficiencies before the statute is put into effect,
is rarely if ever an appropriate task for the judiciary. The combination of
the relative remoteness of the controversy, the impact on the legislative
process of the relief sought, and above all the speculative and amorphous
nature of the required line-by-line analysis of detailed statutes,...ordinarily
results in a kind of case that is wholly unsatisfactory for deciding constitutional
questions, whichever way they might be decided.

And third, a facial challenge on the ground of overbreadth is the most
difficult challenge to mount successfully, since the challenger must establish
that there can be no instance when the assailed law may be valid. Here,
petitioners did not even attempt to show whether this situation exists.

Petitioners likewise seek a facial review of PP 1017 on the ground of
vagueness. This, too, is unwarranted.

Related to the overbreadth doctrine is the void for vagueness doctrine
which holds that a law is facially invalid if men of common intelligence must
necessarily guess at its meaning and differ as to its application.
[110]
It is subject
to the same principles governing overbreadth doctrine. For one, it is also an
analytical tool for testing on their faces statutes in free speech cases. And like
overbreadth, it is said that a litigant may challenge a statute on its face only if it
is vague in all its possible applications. Again, petitioners did not even attempt
to show that PP 1017 is vague in all its application. They also failed to establish
that men of common intelligence cannot understand the meaning and application of
PP 1017.


b. Constitutional Basis of PP 1017


Now on the constitutional foundation of PP 1017.

The operative portion of PP 1017 may be divided into three important
provisions, thus:

First provision:


by virtue of the power vested upon me by Section 18, Artilce
VII do hereby command the Armed Forces of the Philippines, to
maintain law and order throughout the Philippines, prevent or
suppress all forms of lawless violence as well any act of insurrection
or rebellion

Second provision:




and to enforce obedience to all the laws and to all decrees,
orders and regulations promulgated by me personally or upon my
direction;




Third provision:




as provided in Section 17, Article XII of the Constitution do
hereby declare a State of National Emergency.



First Provision: Calling-out Power


The first provision pertains to the Presidents calling-out power. In
Sanlakas v. Executive Secretary,
[111]
this Court, through Mr. Justice Dante O.
Tinga, held that Section 18, Article VII of the Constitution reproduced as follows:

Sec. 18. The President shall be the Commander-in-Chief of all armed
forces of the Philippines and whenever it becomes necessary, he may call out
such armed forces to prevent or suppress lawless violence, invasion or
rebellion. In case of invasion or rebellion, when the public safety requires it, he
may, for a period not exceeding sixty days, suspend the privilege of the writ
of habeas corpus or place the Philippines or any part thereof under martial law.
Within forty-eight hours from the proclamation of martial law or the suspension
of the privilege of the writ of habeas corpus, the President shall submit a report in
person or in writing to the Congress. The Congress, voting jointly, by a vote of at
least a majority of all its Members in regular or special session, may revoke such
proclamation or suspension, which revocation shall not be set aside by the
President. Upon the initiative of the President, the Congress may, in the same
manner, extend such proclamation or suspension for a period to be determined by
the Congress, if the invasion or rebellion shall persist and public safety requires it.

The Congress, if not in session, shall within twenty-four hours following
such proclamation or suspension, convene in accordance with its rules without
need of a call.

The Supreme Court may review, in an appropriate proceeding filed by any
citizen, the sufficiency of the factual bases of the proclamation of martial law or
the suspension of the privilege of the writ or the extension thereof, and must
promulgate its decision thereon within thirty days from its filing.

A state of martial law does not suspend the operation of the Constitution,
nor supplant the functioning of the civil courts or legislative assemblies, nor
authorize the conferment of jurisdiction on military courts and agencies over
civilians where civil courts are able to function, nor automatically suspend the
privilege of the writ.

The suspension of the privilege of the writ shall apply only to persons
judicially charged for rebellion or offenses inherent in or directly connected with
invasion.

During the suspension of the privilege of the writ, any person thus arrested
or detained shall be judicially charged within three days, otherwise he shall be
released.


grants the President, as Commander-in-Chief, a sequence of graduated
powers. From the most to the least benign, these are: the calling-out power, the
power to suspend the privilege of the writ of habeas corpus, and the power to
declare Martial Law. Citing Integrated Bar of the Philippines v. Zamora,
[112]
the
Court ruled that the only criterion for the exercise of the calling-out power is that
whenever it becomes necessary, the President may call the armed forces to
prevent or suppress lawless violence, invasion or rebellion. Are these
conditions present in the instant cases? As stated earlier, considering the
circumstances then prevailing, President Arroyo found it necessary to issue PP
1017. Owing to her Offices vast intelligence network, she is in the best position
to determine the actual condition of the country.

Under the calling-out power, the President may summon the armed forces to
aid him in suppressing lawless violence, invasion and rebellion. This involves
ordinary police action. But every act that goes beyond the Presidents calling-out
power is considered illegal or ultra vires. For this reason, a President must be
careful in the exercise of his powers. He cannot invoke a greater power when he
wishes to act under a lesser power. There lies the wisdom of our Constitution, the
greater the power, the greater are the limitations.

It is pertinent to state, however, that there is a distinction between the
Presidents authority to declare a state of rebellion (in Sanlakas) and the
authority to proclaim a state of national emergency. While President Arroyos
authority to declare a state of rebellion emanates from her powers as Chief
Executive, the statutory authority cited inSanlakas was Section 4, Chapter 2, Book
II of the Revised Administrative Code of 1987, which provides:

SEC. 4. Proclamations. Acts of the President fixing a date or
declaring a status or condition of public moment or interest, upon the
existence of which the operation of a specific law or regulation is made to
depend, shall be promulgated in proclamations which shall have the force
of an executive order.


President Arroyos declaration of a state of rebellion was merely an act
declaring a status or condition of public moment or interest, a declaration allowed
under Section 4 cited above. Such declaration, in the words of Sanlakas, is
harmless, without legal significance, and deemed not written. In these cases, PP
1017 is more than that. In declaring a state of national emergency, President
Arroyo did not only rely on Section 18, Article VII of the Constitution, a provision
calling on the AFP to prevent or suppress lawless violence, invasion or
rebellion. She also relied on Section 17, Article XII, a provision on the States
extraordinary power to take over privately-owned public utility and business
affected with public interest. Indeed, PP 1017 calls for the exercise of
an awesome power. Obviously, such Proclamation cannot be deemed harmless,
without legal significance, or not written, as in the case of Sanlakas.

Some of the petitioners vehemently maintain that PP 1017 is actually a
declaration of Martial Law. It is no so. What defines the character of PP 1017 are
its wordings. It is plain therein that what the President invoked was her calling-out
power.

The declaration of Martial Law is a warn[ing] to citizens that the military
power has been called upon by the executive to assist in the maintenance of law
and order, and that, while the emergency lasts, they must, upon pain of arrest and
punishment, not commit any acts which will in any way render more difficult the
restoration of order and the enforcement of law.
[113]


In his Statement before the Senate Committee on Justice on March 13,
2006, Mr. Justice Vicente V. Mendoza,
[114]
an authority in constitutional law, said
that of the three powers of the President as Commander-in-Chief, the power to
declare Martial Law poses the most severe threat to civil liberties. It is a strong
medicine which should not be resorted to lightly. It cannot be used to stifle or
persecute critics of the government. It is placed in the keeping of the President for
the purpose of enabling him to secure the people from harm and to restore order so
that they can enjoy their individual freedoms. In fact, Section 18, Art. VII,
provides:

A state of martial law does not suspend the operation of the Constitution,
nor supplant the functioning of the civil courts or legislative assemblies, nor
authorize the conferment of jurisdiction on military courts and agencies over
civilians where civil courts are able to function, nor automatically suspend the
privilege of the writ.


Justice Mendoza also stated that PP 1017 is not a declaration of Martial
Law. It is no more than a call by the President to the armed forces to prevent or
suppress lawless violence. As such, it cannot be used to justify acts that only
under a valid declaration of Martial Law can be done. Its use for any other
purpose is a perversion of its nature and scope, and any act done contrary to its
command is ultra vires.

Justice Mendoza further stated that specifically, (a) arrests and seizures
without judicial warrants; (b) ban on public assemblies; (c) take-over of news
media and agencies and press censorship; and (d) issuance of Presidential Decrees,
are powers which can be exercised by the President as Commander-in-
Chief only where there is a valid declaration of Martial Law or suspension of the
writ of habeas corpus.

Based on the above disquisition, it is clear that PP 1017 is not a declaration
of Martial Law. It is merely an exercise of President Arroyos calling-out
power for the armed forces to assist her in preventing or suppressing lawless
violence.




Second Provision: Take Care Power

The second provision pertains to the power of the President to ensure that
the laws be faithfully executed. This is based on Section 17, Article VII which
reads:


SEC. 17. The President shall have control of all the executive
departments, bureaus, and offices. He shall ensure that the laws be faithfully
executed.




As the Executive in whom the executive power is vested,
[115]
the primary
function of the President is to enforce the laws as well as to formulate policies to
be embodied in existing laws. He sees to it that all laws are enforced by the
officials and employees of his department. Before assuming office, he is required
to take an oath or affirmation to the effect that as President of the Philippines, he
will, among others, execute its laws.
[116]
In the exercise of such function, the
President, if needed, may employ the powers attached to his office as the
Commander-in-Chief of all the armed forces of the country,
[117]
including the
Philippine National Police
[118]
under the Department of Interior and Local
Government.
[119]



Petitioners, especially Representatives Francis Joseph G. Escudero, Satur
Ocampo, Rafael Mariano, Teodoro Casio, Liza Maza, and Josel Virador argue
that PP 1017 is unconstitutional as it arrogated upon President Arroyo the power to
enact laws and decrees in violation of Section 1, Article VI of the Constitution,
which vests the power to enact laws in Congress. They assail the clause to
enforce obedience to all the laws and to all decrees, orders and regulations
promulgated by me personally or upon my direction.

\

Petitioners contention is understandable. A reading of PP 1017 operative
clause shows that it was lifted
[120]
from Former President Marcos Proclamation
No. 1081, which partly reads:


NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the
Philippines by virtue of the powers vested upon me by Article VII, Section 10,
Paragraph (2) of the Constitution, do hereby place the entire Philippines as
defined in Article 1, Section 1 of the Constitution under martial law and, in my
capacity as their Commander-in-Chief, do hereby command the Armed Forces
of the Philippines, to maintain law and order throughout the Philippines,
prevent or suppress all forms of lawless violence as well as any act of
insurrection or rebellion and to enforce obedience to all the laws and decrees,
orders and regulations promulgated by me personally or upon my direction.



We all know that it was PP 1081 which granted President Marcos legislative
power. Its enabling clause states: to enforce obedience to all the laws and
decrees, orders and regulations promulgated by me personally or upon my
direction. Upon the other hand, the enabling clause of PP 1017 issued by
President Arroyo is: to enforce obedience to all the laws and to all decrees,
orders and regulations promulgated by me personally or upon my direction.

Is it within the domain of President Arroyo to promulgate decrees?

PP 1017 states in
part: to enforce obedience to all the laws and decrees x x x promulgated by
me personally or upon my direction.

The President is granted an Ordinance Power under Chapter 2, Book III of
Executive Order No. 292 (Administrative Code of 1987). She may issue any of the
following:

Sec. 2. Executive Orders. Acts of the President providing for rules of a
general or permanent character in implementation or execution of constitutional
or statutory powers shall be promulgated in executive orders.
Sec. 3. Administrative Orders. Acts of the President which relate to
particular aspect of governmental operations in pursuance of his duties as
administrative head shall be promulgated in administrative orders.
Sec. 4. Proclamations. Acts of the President fixing a date or declaring
a status or condition of public moment or interest, upon the existence of which the
operation of a specific law or regulation is made to depend, shall be promulgated
in proclamations which shall have the force of an executive order.
Sec. 5. Memorandum Orders. Acts of the President on matters of
administrative detail or of subordinate or temporary interest which only concern a
particular officer or office of the Government shall be embodied in memorandum
orders.
Sec. 6. Memorandum Circulars. Acts of the President on matters
relating to internal administration, which the President desires to bring to the
attention of all or some of the departments, agencies, bureaus or offices of the
Government, for information or compliance, shall be embodied in memorandum
circulars.
Sec. 7. General or Special Orders. Acts and commands of the
President in his capacity as Commander-in-Chief of the Armed Forces of the
Philippines shall be issued as general or special orders.


President Arroyos ordinance power is limited to the foregoing issuances.
She cannot issue decrees similar to those issued by Former President Marcos
under PP 1081. Presidential Decrees are laws which are of the same category and
binding force as statutes because they were issued by the President in the exercise
of his legislative power during the period of Martial Law under the 1973
Constitution.
[121]


This Court rules that the assailed PP 1017 is unconstitutional insofar as
it grants President Arroyo the authority to promulgate decrees. Legislative
power is peculiarly within the province of the Legislature. Section 1, Article VI
categorically states that [t]he legislative power shall be vested in the Congress
of the Philippines which shall consist of a Senate and a House of
Representatives. To be sure, neither Martial Law nor a state of rebellion nor a
state of emergency can justify President Arroyos exercise of legislative power by
issuing decrees.

Can President Arroyo enforce obedience to all decrees and laws through the
military?


As this Court stated earlier, President Arroyo has no authority to enact
decrees. It follows that these decrees are void and, therefore, cannot be
enforced. With respect to laws, she cannot call the military to enforce or
implement certain laws, such as customs laws, laws governing family and property
relations, laws on obligations and contracts and the like. She can only order the
military, under PP 1017, to enforce laws pertinent to its duty to suppress lawless
violence.




Third Provision: Power to Take Over


The pertinent provision of PP 1017 states:

x x x and to enforce obedience to all the laws and to all
decrees, orders, and regulations promulgated by me personally or
upon my direction; and as provided in Section 17, Article XII of
the Constitution do hereby declare a state of national
emergency.


The import of this provision is that President Arroyo, during the state of
national emergency under PP 1017, can call the military not only to enforce
obedience to all the laws and to all decrees x x x but also to act pursuant to the
provision of Section 17, Article XII which reads:

Sec. 17. In times of national emergency, when the public interest so
requires, the State may, during the emergency and under reasonable terms
prescribed by it, temporarily take over or direct the operation of any privately-
owned public utility or business affected with public interest.



What could be the reason of President Arroyo in invoking the above
provision when she issued PP 1017?

The answer is simple. During the existence of the state of national
emergency, PP 1017 purports to grant the President, without any authority or
delegation from Congress, to take over or direct the operation of any privately-
owned public utility or business affected with public interest.

This provision was first introduced in the 1973 Constitution, as a product of
the martial law thinking of the 1971 Constitutional Convention.
[122]
In effect at
the time of its approval was President Marcos Letter of Instruction No. 2 dated
September 22, 1972 instructing the Secretary of National Defense to take over
the management, control and operation of the Manila Electric Company, the
Philippine Long Distance Telephone Company, the National Waterworks
and Sewerage Authority, the Philippine National Railways, the Philippine Air
Lines, Air Manila (and) Filipinas Orient Airways . . . for the successful prosecution
by the Government of its effort to contain, solve and end the present national
emergency.

Petitioners, particularly the members of the House of Representatives, claim
that President Arroyos inclusion of Section 17, Article XII in PP 1017 is an
encroachment on the legislatures emergency powers.

This is an area that needs delineation.

A distinction must be drawn between the Presidents authority to declare a
state of national emergency and to exercise emergency powers. To the first,
as elucidated by the Court, Section 18, Article VII grants the President such power,
hence, no legitimate constitutional objection can be raised. But to the second,
manifold constitutional issues arise.

Section 23, Article VI of the Constitution reads:

SEC. 23. (1) The Congress, by a vote of two-thirds of both Houses in
joint session assembled, voting separately, shall have the sole power to declare
the existence of a state of war.
(2) In times of war or other national emergency, the Congress may, by
law, authorize the President, for a limited period and subject to such restrictions
as it may prescribe, to exercise powers necessary and proper to carry out a
declared national policy. Unless sooner withdrawn by resolution of the Congress,
such powers shall cease upon the next adjournment thereof.

It may be pointed out that the second paragraph of the above provision refers
not only to war but also to other national emergency. If the intention of the
Framers of our Constitution was to withhold from the President the authority to
declare a state of national emergency pursuant to Section 18, Article VII
(calling-out power) and grant it to Congress (like the declaration of the existence of
a state of war), then the Framers could have provided so. Clearly, they did not
intend that Congress should first authorize the President before he can declare a
state of national emergency. The logical conclusion then is that President
Arroyo could validly declare the existence of a state of national emergency even in
the absence of a Congressional enactment.

But the exercise of emergency powers, such as the taking over of privately
owned public utility or business affected with public interest, is a
different matter. This requires a delegation from Congress.

Courts have often said that constitutional provisions in pari materia are to be
construed together. Otherwise stated, different clauses, sections, and provisions of
a constitution which relate to the same subject matter will be construed together
and considered in the light of each other.
[123]
Considering that Section 17 of
Article XII and Section 23 of Article VI, previously quoted, relate to national
emergencies, they must be read together to determine the limitation of the exercise
of emergency powers.

Generally, Congress is the repository of emergency powers. This is
evident in the tenor of Section 23 (2), Article VI authorizing it to delegate such
powers to the President. Certainly, a body cannot delegate a power not reposed
upon it. However, knowing that during grave emergencies, it may not be possible
or practicable for Congress to meet and exercise its powers, the Framers of our
Constitution deemed it wise to allow Congress to grant emergency powers to the
President, subject to certain conditions, thus:


(1) There must be a war or other emergency.

(2) The delegation must be for a limited period only.

(3) The delegation must be subject to such restrictions as the Congress
may prescribe.
(4) The emergency powers must be exercised to carry out a national
policy declared by Congress.
[124]




Section 17, Article XII must be understood as an aspect of the emergency
powers clause. The taking over of private business affected with public interest is
just another facet of the emergency powers generally reposed upon
Congress. Thus, when Section 17 states that the the State may, during the
emergency and under reasonable terms prescribed by it, temporarily take
over or direct the operation of any privately owned public utility or business
affected with public interest, it refers to Congress, not the President. Now,
whether or not the President may exercise such power is dependent on whether
Congress may delegate it to him pursuant to a law prescribing the reasonable terms
thereof. Youngstown Sheet & Tube Co. et al. v. Sawyer,
[125]
held:

It is clear that if the President had authority to issue the order he did, it
must be found in some provision of the Constitution. And it is not claimed that
express constitutional language grants this power to the President. The contention
is that presidential power should be implied from the aggregate of his powers
under the Constitution. Particular reliance is placed on provisions in Article II
which say that The executive Power shall be vested in a President . . . .; that he
shall take Care that the Laws be faithfully executed; and that he shall be
Commander-in-Chief of the Army and Navy of the United States.

The order cannot properly be sustained as an exercise of the Presidents
military power as Commander-in-Chief of the Armed Forces. The Government
attempts to do so by citing a number of cases upholding broad powers in military
commanders engaged in day-to-day fighting in a theater of war. Such cases need
not concern us here. Even though theater of war be an expanding concept,
we cannot with faithfulness to our constitutional system hold that the
Commander-in-Chief of the Armed Forces has the ultimate power as such to
take possession of private property in order to keep labor disputes from
stopping production. This is a job for the nations lawmakers, not for its
military authorities.

Nor can the seizure order be sustained because of the several
constitutional provisions that grant executive power to the President. In the
framework of our Constitution, the Presidents power to see that the laws are
faithfully executed refutes the idea that he is to be a lawmaker. The
Constitution limits his functions in the lawmaking process to the
recommending of laws he thinks wise and the vetoing of laws he thinks
bad. And the Constitution is neither silent nor equivocal about who shall
make laws which the President is to execute. The first section of the first
article says that All legislative Powers herein granted shall be vested in a
Congress of the United States. . .
[126]




Petitioner Cacho-Olivares, et al. contends that the term emergency under
Section 17, Article XII refers to tsunami,
typhoon, hurricane and similar occurrences. This is a limited view of
emergency.



Emergency, as a generic term, connotes the existence of conditions suddenly
intensifying the degree of existing danger to life or well-being beyond that which is
accepted as normal. Implicit in this definitions are the elements of intensity,
variety, and perception.
[127]
Emergencies, as perceived by legislature or executive
in the United Sates since 1933, have been occasioned by a wide range of situations,
classifiable under three (3) principal heads: a) economic,
[128]
b) natural
disaster,
[129]
and c) national security.
[130]






Emergency, as contemplated in our Constitution, is of the same breadth. It
may include rebellion, economic crisis, pestilence or epidemic, typhoon, flood, or
other similar catastrophe of nationwide proportions or effect.
[131]
This is evident in
the Records of the Constitutional Commission, thus:

MR. GASCON. Yes. What is the Committees definition of national
emergency which appears in Section 13, page 5? It reads:

When the common good so requires, the State may temporarily take over or
direct the operation of any privately owned public utility or business affected with
public interest.
MR. VILLEGAS. What I mean is threat from external aggression, for
example, calamities or natural disasters.
MR. GASCON. There is a question by Commissioner de los Reyes. What
about strikes and riots?
MR. VILLEGAS. Strikes, no; those would not be covered by the term
national emergency.
MR. BENGZON. Unless they are of such proportions such that they would
paralyze government service.
[132]

x x x x x x
MR. TINGSON. May I ask the committee if national emergency refers
to military national emergency or could this be economic emergency?
MR. VILLEGAS. Yes, it could refer to both military or economic
dislocations.
MR. TINGSON. Thank you very much.
[133]


It may be argued that when there is national emergency, Congress may not be
able to convene and, therefore, unable to delegate to the President the power to
take over privately-owned public utility or business affected with public interest.

In Araneta v. Dinglasan,
[134]
this Court emphasized that legislative power,
through which extraordinary measures are exercised, remains in Congress even in
times of crisis.

x x x

After all the criticisms that have been made against the efficiency
of the system of the separation of powers, the fact remains that the
Constitution has set up this form of government, with all its defects and
shortcomings, in preference to the commingling of powers in one man or
group of men. The Filipino people by adopting parliamentary government
have given notice that they share the faith of other democracy-loving
peoples in this system, with all its faults, as the ideal. The point is, under
this framework of government, legislation is preserved for Congress all
the time, not excepting periods of crisis no matter how serious. Never in
the history of the United States, the basic features of whose Constitution
have been copied in ours, have specific functions of the legislative branch
of enacting laws been surrendered to another department unless we
regard as legislating the carrying out of a legislative policy according to
prescribed standards; no, not even when that Republic was fighting a total
war, or when it was engaged in a life-and-death struggle to preserve the
Union. The truth is that under our concept of constitutional government,
in times of extreme perils more than in normal circumstances the various
branches, executive, legislative, and judicial, given the ability to act, are
called upon to perform the duties and discharge the responsibilities
committed to them respectively.


Following our interpretation of Section 17, Article XII, invoked by President
Arroyo in issuing PP 1017, this Court rules that such Proclamation does not
authorize her during the emergency to temporarily take over or direct the operation
of any privately owned public utility or business affected with public interest
without authority from Congress.

Let it be emphasized that while the President alone can declare a state of
national emergency, however, without legislation, he has no power to take over
privately-owned public utility or business affected with public interest. The
President cannot decide whether exceptional circumstances exist warranting the
take over of privately-owned public utility or business affected with public
interest. Nor can he determine when such exceptional circumstances have
ceased. Likewise, without legislation, the President has no power to point out the
types of businesses affected with public interest that should be taken over. In
short, the President has no absolute authority to exercise all the powers of the State
under Section 17, Article VII in the absence of an emergency powers act passed by
Congress.


c. AS APPLIED CHALLENGE

One of the misfortunes of an emergency, particularly, that which pertains to
security, is that military necessity and the guaranteed rights of the individual are
often not compatible. Our history reveals that in the crucible of conflict, many
rights are curtailed and trampled upon. Here, the right against unreasonable
search and seizure; the right against warrantless arrest; and the freedom of
speech, of expression, of the press, and of assembly under the Bill of Rights
suffered the greatest blow.

Of the seven (7) petitions, three (3) indicate direct injury.

In G.R. No. 171396, petitioners David and Llamas alleged that, on February
24, 2006, they were arrested without warrants on their way to EDSA to celebrate
the 20
th
Anniversary of People Power I. The arresting officers cited PP 1017 as
basis of the arrest.

In G.R. No. 171409, petitioners Cacho-Olivares and Tribune Publishing
Co., Inc. claimed that on February 25, 2006, the CIDG operatives raided and
ransacked without warrant their office. Three policemen were assigned to guard
their office as a possible source of destabilization. Again, the basis was PP
1017.

And in G.R. No. 171483, petitioners KMU and NAFLU-KMU et al. alleged
that their members were turned away and dispersed when they went to EDSA
and later, to Ayala Avenue, to celebrate the 20
th
Anniversary of People Power I.

A perusal of the direct injuries allegedly suffered by the said petitioners
shows that they resulted from the implementation, pursuant to G.O. No. 5, of PP
1017.

Can this Court adjudge as unconstitutional PP 1017 and G.O. No 5 on the
basis of these illegal acts? In general, does the illegal implementation of a law
render it unconstitutional?

Settled is the rule that courts are not at liberty to declare statutes
invalid although they may be abused and misabused
[135]
and may afford an
opportunity for abuse in the manner of application.
[136]
The validity of a statute
or ordinance is to be determined from its general purpose and its efficiency to
accomplish the end desired, not from its effects in a particular case.
[137]
PP 1017
is merely an invocation of the Presidents calling-out power. Its general purpose is
to command the AFP to suppress all forms of lawless violence, invasion or
rebellion. It had accomplished the end desired which prompted President Arroyo
to issue PP 1021. But there is nothing in PP 1017 allowing the police, expressly or
impliedly, to conduct illegal arrest, search or violate the citizens constitutional
rights.




Now, may this Court adjudge a law or ordinance unconstitutional on the
ground that its implementor committed illegal acts? The answer is no. The
criterion by which the validity of the statute or ordinance is to be measured is the
essential basis for the exercise of power, and not a mere incidental result arising
from its exertion.
[138]
This is logical. Just imagine the absurdity of situations
when laws maybe declared unconstitutional just because the officers implementing
them have acted arbitrarily. If this were so, judging from the blunders committed
by policemen in the cases passed upon by the Court, majority of the provisions of
the Revised Penal Code would have been declared unconstitutional a long time
ago.


President Arroyo issued G.O. No. 5 to carry into effect the provisions of PP
1017. General orders are acts and commands of the President in his capacity as
Commander-in-Chief of the Armed Forces of the Philippines. They are internal
rules issued by the executive officer to his subordinates precisely for
the proper and efficient administration of law. Such rules and regulations create
no relation except between the official who issues them and the official who
receives them.
[139]
They are based on and are the product of, a relationship in
which power is their source, and obedience, their object.
[140]
For these reasons, one
requirement for these rules to be valid is that they must be reasonable, not
arbitrary or capricious.

G.O. No. 5 mandates the AFP and the PNP to immediately carry out the
necessary and appropriate actions and measures to suppress and prevent
acts of terrorism and lawless violence.

Unlike the term lawless violence which is unarguably extant in our
statutes and the Constitution, and which is invariably associated with invasion,
insurrection or rebellion, the phrase acts of terrorism is still an amorphous and
vague concept. Congress has yet to enact a law defining and punishing acts of
terrorism.



In fact, this definitional predicament or the absence of an agreed
definition of terrorism confronts not only our country, but the international
community as well. The following observations are quite apropos:

In the actual unipolar context of international relations, the fight against
terrorism has become one of the basic slogans when it comes to the justification
of the use of force against certain states and against groups operating
internationally. Lists of states sponsoring terrorism and of terrorist
organizations are set up and constantly being updated according to criteria that are
not always known to the public, but are clearly determined by strategic interests.

The basic problem underlying all these military actions or threats of the
use of force as the most recent by the United States against Iraq consists in the
absence of an agreed definition of terrorism.

Remarkable confusion persists in regard to the legal categorization of acts
of violence either by states, by armed groups such as liberation movements, or by
individuals.

The dilemma can by summarized in the saying One countrys terrorist is
another countrys freedom fighter. The apparent contradiction or lack of
consistency in the use of the term terrorism may further be demonstrated by the
historical fact that leaders of national liberation movements such as Nelson
Mandela in South Africa, Habib Bourgouiba in Tunisia, or Ahmed Ben Bella in
Algeria, to mention only a few, were originally labeled as terrorists by those who
controlled the territory at the time, but later became internationally respected
statesmen.

What, then, is the defining criterion for terrorist acts the differentia
specifica distinguishing those acts from eventually legitimate acts of national
resistance or self-defense?

Since the times of the Cold War the United Nations Organization has been
trying in vain to reach a consensus on the basic issue of definition. The
organization has intensified its efforts recently, but has been unable to bridge the
gap between those who associate terrorism with any violent act by non-state
groups against civilians, state functionaries or infrastructure or military
installations, and those who believe in the concept of the legitimate use of force
when resistance against foreign occupation or against systematic oppression of
ethnic and/or religious groups within a state is concerned.

The dilemma facing the international community can best be illustrated by
reference to the contradicting categorization of organizations and movements
such as Palestine Liberation Organization (PLO) which is a terrorist group for
Israel and a liberation movement for Arabs and Muslims the Kashmiri
resistance groups who are terrorists in the perception of India, liberation fighters
in that of Pakistan the earlier Contras in Nicaragua freedom fighters for the
United States, terrorists for the Socialist camp or, most drastically, the Afghani
Mujahedeen (later to become the Taliban movement): during the Cold War period
they were a group of freedom fighters for the West, nurtured by the United States,
and a terrorist gang for the Soviet Union. One could go on and on in enumerating
examples of conflicting categorizations that cannot be reconciled in any way
because of opposing political interests that are at the roots of those perceptions.

How, then, can those contradicting definitions and conflicting perceptions
and evaluations of one and the same group and its actions be explained? In our
analysis, the basic reason for these striking inconsistencies lies in the divergent
interest of states. Depending on whether a state is in the position of an occupying
power or in that of a rival, or adversary, of an occupying power in a given
territory, the definition of terrorism will fluctuate accordingly. A state may
eventually see itself as protector of the rights of a certain ethnic group outside its
territory and will therefore speak of a liberation struggle, not of terrorism
when acts of violence by this group are concerned, and vice-versa.

The United Nations Organization has been unable to reach a decision on
the definition of terrorism exactly because of these conflicting interests of
sovereign states that determine in each and every instance how a particular armed
movement (i.e. a non-state actor) is labeled in regard to the terrorists-freedom
fighter dichotomy. A policy of double standards on this vital issue of
international affairs has been the unavoidable consequence.

This definitional predicament of an organization consisting of sovereign
states and not of peoples, in spite of the emphasis in the Preamble to the United
Nations Charter! has become even more serious in the present global power
constellation: one superpower exercises the decisive role in the Security Council,
former great powers of the Cold War era as well as medium powers are
increasingly being marginalized; and the problem has become even more acute
since the terrorist attacks of 11 September 2001 I the United States.
[141]


The absence of a law defining acts of terrorism may result in abuse and
oppression on the part of the police or military. An illustration is when a group of
persons are merely engaged in a drinking spree. Yet the military or the police may
consider the act as an act of terrorism and immediately arrest them pursuant to
G.O. No. 5. Obviously, this is abuse and oppression on their part. It must be
remembered that an act can only be considered a crime if there is a law defining
the same as such and imposing the corresponding penalty thereon.


So far, the word terrorism appears only once in our criminal laws, i.e., in
P.D. No. 1835 dated January 16, 1981 enacted by President Marcos during the
Martial Law regime. This decree is entitled Codifying The Various Laws on
Anti-Subversion and Increasing The Penalties for Membership in Subversive
Organizations. The word terrorism is mentioned in the following
provision: That one who conspires with any other person for the purpose of
overthrowing the Government of the Philippines x x x by force,
violence, terrorism, x x x shall be punished by reclusion temporal x x x.



P.D. No. 1835 was repealed by E.O. No. 167 (which outlaws the Communist
Party of the Philippines) enacted by President Corazon Aquino on May 5,
1985. These two (2) laws, however, do not define acts of terrorism. Since there
is no law defining acts of terrorism, it is President Arroyo alone, under G.O. No.
5, who has the discretion to determine what acts constitute terrorism. Her
judgment on this aspect is absolute, without restrictions. Consequently, there can
be indiscriminate arrest without warrants, breaking into offices and residences,
taking over the media enterprises, prohibition and dispersal of all assemblies and
gatherings unfriendly to the administration. All these can be effected in the name
of G.O. No. 5. These acts go far beyond the calling-out power of the
President. Certainly, they violate the due process clause of the Constitution. Thus,
this Court declares that the acts of terrorism portion of G.O. No. 5 is
unconstitutional.




Significantly, there is nothing in G.O. No. 5 authorizing the military or
police to commit acts beyond what are necessary and appropriate to suppress
and prevent lawless violence, the limitation of their authority in pursuing the
Order. Otherwise, such acts are considered illegal.





We first examine G.R. No. 171396 (David et al.)



The Constitution provides that the right of the people to be secured in their
persons, houses, papers and effects against unreasonable search and seizure of
whatever nature and for any purpose shall be inviolable, and no search warrant
or warrant of arrest shall issue except upon probable cause to be determined
personally by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing the
place to be searched and the persons or things to be seized.
[142]
The plain import
of the language of the Constitution is that searches, seizures and arrests
are normally unreasonable unless authorized by a validly issued search warrant or
warrant of arrest. Thus, the fundamental protection given by this provision is that
between person and police must stand the protective authority of a magistrate
clothed with power to issue or refuse to issue search warrants or warrants of
arrest.
[143]



In the Brief Account
[144]
submitted by petitioner David, certain facts are
established: first, he was arrested without warrant; second, the PNP operatives
arrested him on the basis of PP 1017; third, he was brought at Camp Karingal,
Quezon City where he was fingerprinted, photographed and booked like a
criminal suspect; fourth, he was treated brusquely by policemen who held his
head and tried to push him inside an unmarked car; fifth, he was charged with
Violation of Batas Pambansa Bilang No. 880
[145]
and Inciting to
Sedition; sixth, he was detained for seven (7) hours; and seventh, he
was eventually released for insufficiency of evidence.





Section 5, Rule 113 of the Revised Rules on Criminal Procedure provides:

Sec. 5. Arrest without warrant; when lawful. - A peace officer or a
private person may, without a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is
actually committing, or is attempting to commit an offense.

(b) When an offense has just been committed and he has probable
cause to believe based on personal knowledge of facts or circumstances that
the person to be arrested has committed it; and

x x x.





Neither of the two (2) exceptions mentioned above justifies petitioner
Davids warrantless arrest. During the inquest for the charges of inciting to
sedition and violation of BP 880, all that the arresting officers could invoke
was their observation that some rallyists were wearing t-shirts with the
invective Oust Gloria Now and their erroneous assumption that petitioner
David was the leader of the rally.
[146]
Consequently, the Inquest Prosecutor
ordered his immediate release on the ground of insufficiency of evidence. He
noted that petitioner David was not wearing the subject t-shirt and even if he was
wearing it, such fact is insufficient to charge him with inciting to
sedition. Further, he also stated that there is insufficient evidence for the charge
of violation of BP 880 as it was not even known whether petitioner David was the
leader of the rally.
[147]





But what made it doubly worse for petitioners David et al. is that not only
was their right against warrantless arrest violated, but also their right to peaceably
assemble.






Section 4 of Article III guarantees:

No law shall be passed abridging the freedom of speech, of expression, or
of the press, or the right of the people peaceably to assemble and petition the
government for redress of grievances.


Assembly means a right on the part of the citizens to meet peaceably for
consultation in respect to public affairs. It is a necessary consequence of our
republican institution and complements the right of speech. As in the case of
freedom of expression, this right is not to be limited, much less denied, except on a
showing of a clear and present danger of a substantive evil that Congress has a
right to prevent. In other words, like other rights embraced in the freedom of
expression, the right to assemble is not subject to previous restraint or
censorship. It may not be conditioned upon the prior issuance of a permit or
authorization from the government authorities except, of course, if the assembly is
intended to be held in a public place, a permit for the use of such place, and not for
the assembly itself, may be validly required.



The ringing truth here is that petitioner David, et al. were arrested while they
were exercising their right to peaceful assembly. They were not committing any
crime, neither was there a showing of a clear and present danger that warranted the
limitation of that right. As can be gleaned from circumstances, the charges
of inciting to seditionand violation of BP 880 were mere afterthought. Even the
Solicitor General, during the oral argument, failed to justify the arresting officers
conduct. In De Jonge v. Oregon,
[148]
it was held that peaceable assembly cannot be
made a crime, thus:

Peaceable assembly for lawful discussion cannot be made a crime. The
holding of meetings for peaceable political action cannot be proscribed. Those
who assist in the conduct of such meetings cannot be branded as criminals on that
score. The question, if the rights of free speech and peaceful assembly are not to
be preserved, is not as to the auspices under which the meeting was held but as to
its purpose; not as to the relations of the speakers, but whether their utterances
transcend the bounds of the freedom of speech which the Constitution protects. If
the persons assembling have committed crimes elsewhere, if they have formed or
are engaged in a conspiracy against the public peace and order, they may be
prosecuted for their conspiracy or other violations of valid laws. But it is a
different matter when the State, instead of prosecuting them for such
offenses, seizes upon mere participation in a peaceable assembly and a lawful
public discussion as the basis for a criminal charge.



On the basis of the above principles, the Court likewise considers the
dispersal and arrest of the members of KMU et al. (G.R. No. 171483) unwarranted.
Apparently, their dispersal was done merely on the basis of Malacaangs directive
canceling all permits previously issued by local government units. This is
arbitrary. The wholesale cancellation of all permits to rally is a blatant disregard of
the principle that freedom of assembly is not to be limited, much less denied,
except on a showing of a clear and present danger of a substantive evil that the
State has a right to prevent.
[149]
Tolerance is the rule and limitation is the
exception. Only upon a showing that an assembly presents a clear and present
danger that the State may deny the citizens right to exercise it. Indeed,
respondents failed to show or convince the Court that the rallyists committed acts
amounting to lawless violence, invasion or rebellion. With the blanket revocation
of permits, the distinction between protected and unprotected assemblies was
eliminated.


Moreover, under BP 880, the authority to regulate assemblies and rallies is
lodged with the local government units. They have the power to issue permits and
to revoke such permits after due notice and hearing on the determination of the
presence of clear and present danger. Here, petitioners were not even notified and
heard on the revocation of their permits.
[150]
The first time they learned of it was at
the time of the dispersal. Such absence of notice is a fatal defect. When a persons
right is restricted by government action, it behooves a democratic government to
see to it that the restriction is fair, reasonable, and according to procedure.



G.R. No. 171409, (Cacho-Olivares, et al.) presents another facet of freedom
of speech i.e., the freedom of the press. Petitioners narration of facts, which the
Solicitor General failed to refute, established the following: first, the Daily
Tribunes offices were searched without warrant; second, the police operatives
seized several materials for publication; third, the search was conducted at about
1:00 o clock in the morning of February 25, 2006; fourth, the search was
conducted in the absence of any official of theDaily Tribune except the security
guard of the building; and fifth, policemen stationed themselves at the vicinity of
the Daily Tribune offices.

Thereafter, a wave of warning came from government officials. Presidential
Chief of Staff Michael Defensor was quoted as saying that such raid was meant
to show a strong presence, to tell media outlets not to connive or do anything
that would help the rebels in bringing down this government. Director
General Lomibao further stated that if they do not follow the standards and
the standards are if they would contribute to instability in the government, or
if they do not subscribe to what is in General Order No. 5 and Proc. No. 1017
we will recommend a takeover. National Telecommunications
Commissioner Ronald Solis urged television and radio networks
to cooperate with the government for the duration of the state of national
emergency. He warned that his agency will not hesitate to recommend the
closure of any broadcast outfit that violates rules set out for media coverage
during times when the national security is threatened.
[151]



The search is illegal. Rule 126 of The Revised Rules on Criminal Procedure
lays down the steps in the conduct of search and seizure. Section 4 requires that
a search warrant be issued upon probable cause in connection with one specific
offence to be determined personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce. Section
8 mandates that the search of a house, room, or any other premise be made in the
presence of the lawful occupantthereof or any member of his family or in the
absence of the latter, in the presence of two (2) witnesses of sufficient age and
discretion residing in the same locality. And Section 9 states that the warrant
must direct that it be served in the daytime, unless the property is on the person or
in the place ordered to be searched, in which case a direction may be inserted that
it be served at any time of the day or night. All these rules were violated by the
CIDG operatives.


Not only that, the search violated petitioners freedom of the press. The
best gauge of a free and democratic society rests in the degree of freedom enjoyed
by its media. In the Burgos v. Chief of Staff
[152]
this Court held that --
As heretofore stated, the premises searched were the business and
printing offices of the "Metropolitan Mail" and the "We Forum newspapers. As a
consequence of the search and seizure, these premises were padlocked and
sealed, with the further result that the printing and publication of said
newspapers were discontinued.

Such closure is in the nature of previous restraint or censorship
abhorrent to the freedom of the press guaranteed under the fundamental
law, and constitutes a virtual denial of petitioners' freedom to express
themselves in print. This state of being is patently anathematic to a
democratic framework where a free, alert and even militant press is essential
for the political enlightenment and growth of the citizenry.



While admittedly, the Daily Tribune was not padlocked and sealed like the
Metropolitan Mail and We Forum newspapers in the above case, yet it cannot
be denied that the CIDG operatives exceeded their enforcement duties. The search
and seizure of materials for publication, the stationing of policemen in the vicinity
of the The Daily Tribune offices, and the arrogant warning of government officials
to media, are plain censorship. It is that officious functionary of the repressive
government who tells the citizen that he may speak only if allowed to do so, and no
more and no less than what he is permitted to say on pain of punishment should he
be so rash as to disobey.
[153]
Undoubtedly, the The Daily Tribune was subjected to
these arbitrary intrusions because of its anti-government sentiments. This Court
cannot tolerate the blatant disregard of a constitutional right even if it involves the
most defiant of our citizens. Freedom to comment on public affairs is essential to
the vitality of a representative democracy. It is the duty of the courts to be
watchful for the constitutional rights of the citizen, and against any stealthy
encroachments thereon. The motto should always be obsta principiis.
[154]





Incidentally, during the oral arguments, the Solicitor General admitted that
the search of the Tribunes offices and the seizure of its materials for publication
and other papers are illegal; and that the same are inadmissible for any purpose,
thus:

JUSTICE CALLEJO:

You made quite a mouthful of admission when you said
that the policemen, when inspected the Tribune for the
purpose of gathering evidence and you admitted that the
policemen were able to get the clippings. Is that not in
admission of the admissibility of these clippings that were
taken from the Tribune?

SOLICITOR GENERAL BENIPAYO:

Under the law they would seem to be, if they were illegally
seized, I think and I know, Your Honor, and these are
inadmissible for any purpose.
[155]


x x x x x x x x x

SR. ASSO. JUSTICE PUNO:

These have been published in the past issues of the Daily
Tribune; all you have to do is to get those past issues. So
why do you have to go there at 1 oclock in the morning
and without any search warrant? Did they become
suddenly part of the evidence of rebellion or inciting to
sedition or what?

SOLGEN BENIPAYO:

Well, it was the police that did that, Your Honor. Not upon
my instructions.

SR. ASSO. JUSTICE PUNO:

Are you saying that the act of the policeman is illegal, it is
not based on any law, and it is not based on Proclamation
1017.

SOLGEN BENIPAYO:

It is not based on Proclamation 1017, Your Honor, because
there is nothing in 1017 which says that the police could go
and inspect and gather clippings from Daily Tribune or any
other newspaper.

SR. ASSO. JUSTICE PUNO:

Is it based on any law?

SOLGEN BENIPAYO:

As far as I know, no, Your Honor, from the facts, no.

SR. ASSO. JUSTICE PUNO:

So, it has no basis, no legal basis whatsoever?




SOLGEN BENIPAYO:

Maybe so, Your Honor. Maybe so, that is why I said, I
dont know if it is premature to say this, we do not
condone this. If the people who have been injured by
this would want to sue them, they can sue and there are
remedies for this.
[156]



Likewise, the warrantless arrests and seizures executed by the police were,
according to the Solicitor General, illegal and cannot be condoned, thus:

CHIEF JUSTICE PANGANIBAN:

There seems to be some confusions if not contradiction in
your theory.

SOLICITOR GENERAL BENIPAYO:

I dont know whether this will clarify. The acts, the
supposed illegal or unlawful acts committed on the occasion of
1017, as I said, it cannot be condoned. You cannot blame the
President for, as you said, a misapplication of the law. These are
acts of the police officers, that is their responsibility.
[157]




The Dissenting Opinion states that PP 1017 and G.O. No. 5 are
constitutional in every aspect and should result in no constitutional or statutory
breaches if applied according to their letter.

The Court has passed upon the constitutionality of these issuances. Its
ratiocination has been exhaustively presented. At this point, suffice it to reiterate
that PP 1017 is limited to the calling out by the President of the military to prevent
or suppress lawless violence, invasion or rebellion. When in implementing its
provisions, pursuant to G.O. No. 5, the military and the police committed acts
which violate the citizens rights under the Constitution, this Court has to declare
such acts unconstitutional and illegal.

In this connection, Chief Justice Artemio V. Panganibans concurring
opinion, attached hereto, is considered an integral part of this ponencia.


S U M M A T I O N

In sum, the lifting of PP 1017 through the issuance of PP 1021 a
supervening event would have normally rendered this case moot and
academic. However, while PP 1017 was still operative, illegal acts were
committed allegedly in pursuance thereof. Besides, there is no guarantee that PP
1017, or one similar to it, may not again be issued. Already, there have been
media reports on April 30, 2006 that allegedly PP 1017 would be reimposed if the
May 1 rallies become unruly and violent. Consequently, the transcendental
issues raised by the parties should not be evaded; they must now be resolved to
prevent future constitutional aberration.

The Court finds and so holds that PP 1017 is constitutional insofar as it
constitutes a call by the President for the AFP to prevent or suppress lawless
violence. The proclamation is sustained by Section 18, Article VII of the
Constitution and the relevant jurisprudence discussed earlier. However, PP 1017s
extraneous provisions giving the President express or implied power (1) to issue
decrees; (2) to direct the AFP to enforce obedience to all laws even those not
related to lawless violence as well as decrees promulgated by the President; and (3)
to impose standards on media or any form of prior restraint on the press, are ultra
vires and unconstitutional. The Court also rules that under Section 17, Article XII
of the Constitution, the President, in the absence of a legislation, cannot take over
privately-owned public utility and private business affected with public interest.



In the same vein, the Court finds G.O. No. 5 valid. It is an Order issued by
the President acting as Commander-in-Chief addressed to subalterns in the
AFP to carry out the provisions of PP 1017. Significantly, it also provides a valid
standard that the military and the police should take only the necessary and
appropriate actions and measures to suppress and prevent acts of lawless
violence. But the words acts of terrorism found in G.O. No. 5 have not been
legally defined and made punishable by Congress and should thus be deemed
deleted from the said G.O. While terrorism has been denounced generally in
media, no law has been enacted to guide the military, and eventually the courts, to
determine the limits of the AFPs authority in carrying out this portion of G.O. No.
5.



On the basis of the relevant and uncontested facts narrated earlier, it is also
pristine clear that (1) the warrantless arrest of petitioners Randolf S. David and
Ronald Llamas; (2) the dispersal of the rallies and warrantless arrest of the KMU
and NAFLU-KMU members; (3) the imposition of standards on media or any prior
restraint on the press; and (4) the warrantless search of the Tribune offices and the
whimsical seizures of some articles for publication and other materials, are not
authorized by the Constitution, the law and jurisprudence. Not even by the valid
provisions of PP 1017 and G.O. No. 5.


Other than this declaration of invalidity, this Court cannot impose any civil,
criminal or administrative sanctions on the individual police officers
concerned. They have not been individually identified and given their day in
court. The civil complaints or causes of action and/or relevant criminal
Informations have not been presented before this Court. Elementary due process
bars this Court from making any specific pronouncement of civil, criminal or
administrative liabilities.




It is well to remember that military power is a means to an end and
substantive civil rights are ends in themselves. How to give the military the
power it needs to protect the Republic without unnecessarily trampling
individual rights is one of the eternal balancing tasks of a democratic
state. During emergency, governmental action may vary in breadth and intensity
from normal times, yet they should not be arbitrary as to unduly restrain our
peoples liberty.

Perhaps, the vital lesson that we must learn from the theorists who studied
the various competing political philosophies is that, it is possible to grant
government the authority to cope with crises without surrendering the two vital
principles of constitutionalism: the maintenance of legal limits to arbitrary
power, and political responsibility of the government to the governed.
[158]


WHEREFORE, the Petitions are partly granted. The Court rules that PP
1017 is CONSTITUTIONAL insofar as it constitutes a call by President Gloria
Macapagal-Arroyo on the AFP to prevent or suppress lawless
violence. However, the provisions of PP 1017 commanding the AFP to enforce
laws not related to lawless violence, as well as decrees promulgated by the
President, are declared UNCONSTITUTIONAL. In addition, the provision in
PP 1017 declaring national emergency under Section 17, Article VII of the
Constitution is CONSTITUTIONAL, but such declaration does not authorize the
President to take over privately-owned public utility or business affected with
public interest without prior legislation.

G.O. No. 5 is CONSTITUTIONAL since it provides a standard by which
the AFP and the PNP should implement PP 1017, i.e. whatever is necessary and
appropriate actions and measures to suppress and prevent acts of lawless
violence. Considering that acts of terrorism have not yet been defined and
made punishable by the Legislature, such portion of G.O. No. 5 is
declared UNCONSTITUTIONAL.





The warrantless arrest of Randolf S. David and Ronald Llamas; the dispersal
and warrantless arrest of the KMU and NAFLU-KMU members during their
rallies, in the absence of proof that these petitioners were committing acts
constituting lawless violence, invasion or rebellion and violating BP 880; the
imposition of standards on media or any form of prior restraint on the press, as
well as the warrantless search of the Tribune offices and whimsical seizure of its
articles for publication and other materials, are
declared UNCONSTITUTIONAL.

No costs.

SO ORDERED.

G.R. No. 96541 August 24, 1993
DEAN JOSE JOYA, CARMEN GUERRERO NAKPIL, ARMIDA SIGUION REYNA, PROF.
RICARTE M. PURUGANAN, IRMA POTENCIANO, ADRIAN CRISTOBAL, INGRID SANTAMARIA,
CORAZON FIEL, AMBASSADOR E. AGUILAR CRUZ, FLORENCIO R. JACELA, JR., MAURO
MALANG, FEDERICO AGUILAR ALCUAZ, LUCRECIA R. URTULA, SUSANO GONZALES,
STEVE SANTOS, EPHRAIM SAMSON, SOLER SANTOS, ANG KIU KOK, KERIMA POLOTAN,
LUCRECIA KASILAG, LIGAYA DAVID PEREZ, VIRGILIO ALMARIO, LIWAYWAY A. ARCEO,
CHARITO PLANAS, HELENA BENITEZ, ANNA MARIA L. HARPER, ROSALINDA OROSA,
SUSAN CALO MEDINA, PATRICIA RUIZ, BONNIE RUIZ, NELSON NAVARRO, MANDY
NAVASERO, ROMEO SALVADOR, JOSEPHINE DARANG, and PAZ VETO PLANAS, petitioners,
vs.
PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT (PCGG), CATALINO MACARAIG, JR.,
in his official capacity, and/or the Executive Secretary, and CHAIRMAN MATEO A.T.
CAPARAS, respondents.
M.M. Lazaro & Associates for petitioners.
The Solicitor General for respondents.

BELLOSILLO, J .:
All thirty-five (35) petitioners in this Special Civil Action for Prohibition and Mandamus with Prayer for
Preliminary Injunction and/or Restraining Order seek to enjoin the Presidential Commission on Good
Government (PCGG) from proceeding with the auction sale scheduled on 11 January 1991 by
Christie's of New York of the Old Masters Paintings and 18th and 19th century silverware seized
from Malacaang and the Metropolitan Museum of Manila and placed in the custody of the Central
Bank.
The antecedents: On 9 August 1990, Mateo A.T. Caparas, then Chairman of PCGG, wrote then
President Corazon C. Aquino, requesting her for authority to sign the proposed Consignment
Agreement between the Republic of the Philippines through PCGG and Christie, Manson and
Woods International, Inc. (Christie's of New York, or CHRISTIE'S) concerning the scheduled sale on
11 January 1991 of eighty-two (82) Old Masters Paintings and antique silverware seized from
Malacaang and the Metropolitan Museum of Manila alleged to be part of the ill-gotten wealth of the
late President Marcos, his relatives and cronies.
On 14 August 1990, then President Aquino, through former Executive Secretary Catalino Macaraig,
Jr., authorized Chairman Caparas to sign the Consignment Agreement allowing Christie's of New
York to auction off the subject art pieces for and in behalf of the Republic of the Philippines.
On 15 August 1990, PCGG, through Chairman Caparas, representing the Government of the
Republic of the Philippines, signed the Consignment Agreement with Christie's of New York.
According to the agreement, PCGG shall consign to CHRISTIE'S for sale at public auction the
eighty-two (82) Old Masters Paintings then found at the Metropolitan Museum of Manila as well as
the silverware contained in seventy-one (71) cartons in the custody of the Central Bank of the
Philippines, and such other property as may subsequently be identified by PCGG and accepted by
CHRISTIE'S to be subject to the provisions of the agreement.
1

On 26 October 1990, the Commission on Audit (COA) through then Chairman Eufemio C. Domingo
submitted to President Aquino the audit findings and observations of COA on the Consignment
Agreement of 15 August 1990 to the effect that: (a) the authority of former PCGG Chairman Caparas
to enter into the Consignment Agreement was of doubtful legality; (b) the contract was highly
disadvantageous to the government; (c) PCGG had a poor track record in asset disposal by auction
in the U.S.; and, (d) the assets subject of auction were historical relics and had cultural significance,
hence, their disposal was prohibited by law.
2

On 15 November 1990, PCGG through its new Chairman David M. Castro, wrote President Aquino
defending the Consignment Agreement and refuting the allegations of COA Chairman Domingo.
3
On
the same date, Director of National Museum Gabriel S. Casal issued a certification that the items subject
of the Consignment Agreement did not fall within the classification of protected cultural properties and did
not specifically qualify as part of the Filipino cultural heritage.
4
Hence, this petition originally filed on 7
January 1991 by Dean Jose Joya, Carmen Guerrero Nakpil, Armida Siguion Reyna, Prof. Ricarte M.
Puruganan, Irma Potenciano, Adrian Cristobal, Ingrid Santamaria, Corazon Fiel, Ambassador E. Aguilar
Cruz, Florencio R. Jacela, Jr., Mauro Malang, Federico Aguilar Alcuaz, Lucrecia R. Urtula, Susano
Gonzales, Steve Santos, Ephraim Samson, Soler Santos, Ang Kiu Kok, Kerima Polotan, Lucrecia
Kasilag, Ligaya David Perez, Virgilio Almario and Liwayway A. Arceo.
After the oral arguments of the parties on 9 January 1991, we issued immediately our resolution
denying the application for preliminary injunction to restrain the scheduled sale of the artworks on
the ground that petitioners had not presented a clear legal right to a restraining order and that proper
parties had not been impleaded.
On 11 January 1991, the sale at public auction proceeded as scheduled and the proceeds of
$13,302,604.86 were turned over to the Bureau of Treasury.
5

On 5 February 1991, on motion of petitioners, the following were joined as additional petitioners:
Charito Planas, Helena Benitez, Ana Maria L. Harper, Rosalinda Orosa, Susan Carlo Medina,
Patricia Ruiz, Bonnie Ruiz, Nelson Navarro, Mandy Navasero, Romeo Salvador, Josephine Darang
and Paz Veto Planas.
On the other hand, Catalino Macaraig, Jr., in his capacity as former Executive Secretary, the
incumbent Executive Secretary, and Chairman Mateo A.T. Caparas were impleaded as additional
respondents.
Petitioners raise the following issues: (a) whether petitioners have legal standing to file the instant
petition; (b) whether the Old Masters Paintings and antique silverware are embraced in the phrase
"cultural treasure of the nation" which is under the protection of the state pursuant to the 1987
Constitution and/or "cultural properties" contemplated under R.A. 4846, otherwise known as "The
Cultural Properties Preservation and Protection Act;" (c) whether the paintings and silverware are
properties of public dominion on which can be disposed of through the joint concurrence of the
President and Congress;
(d) whether respondent, PCGG has the jurisdiction and authority to enter into an agreement with
Christie's of New York for the sale of the artworks; (e) whether, PCGG has complied with the due
process clause and other statutory requirements for the exportation and sale of the subject items;
and, (f) whether the petition has become moot and academic, and if so, whether the above issues
warrant resolution from this Court.
The issues being interrelated, they will be discussed jointly hereunder. However, before proceeding,
we wish to emphasize that we admire and commend petitioners' zealous concern to keep and
preserve within the country great works of art by well-known old masters. Indeed, the value of art
cannot be gainsaid. For, by serving as a creative medium through which man can express his
innermost thoughts and unbridled emotions while, at the same time, reflecting his deep-seated
ideals, art has become a true expression of beauty, joy, and life itself. Such artistic creations give us
insights into the artists' cultural heritage the historic past of the nation and the era to which they
belong in their triumphant, glorious, as well as troubled and turbulent years. It must be for this
reason that the framers of the 1987 Constitution mandated in Art. XIV, Sec. 14, that is the solemn
duty of the state to "foster the preservation, enrichment, and dynamic evolution of a Filipino national
culture based on the principle of unity in diversity in a climate of free artistic and intellectual
expression." And, in urging this Court to grant their petition, petitioners invoke this policy of the state
on the protection of the arts.
But, the altruistic and noble purpose of the petition notwithstanding, there is that basic legal question
which must first be resolved: whether the instant petition complies with the legal requisites for this
Court to exercise its power of judicial review over this case.
The rule is settled that no question involving the constitutionality or validity of a law or governmental
act may be heard and decided by the court unless there is compliance with the legal requisites for
judicial inquiry, namely: that the question must be raised by the proper party; that there must be an
actual case or controversy; that the question must be raised at the earliest possible opportunity; and,
that the decision on the constitutional or legal question must be necessary to the determination of
the case itself.
6
But the most important are the first two (2) requisites.
On the first requisite, we have held that one having no right or interest to protect cannot invoke the
jurisdiction of the court as party-plaintiff in an
action.
7
This is premised on Sec. 2, Rule 3, of the Rules of Court which provides that every action must
be prosecuted and defended in the name of the real party-in-interest, and that all persons having interest
in the subject of the action and in obtaining the relief demanded shall be joined as plaintiffs. The Court will
exercise its power of judicial review only if the case is brought before it by a party who has the legal
standing to raise the constitutional or legal question. "Legal standing" means a personal and substantial
interest in the case such that the party has sustained or will sustain direct injury as a result of the
governmental act that is being challenged. The term "interest" is material interest, an interest in issue and
to be affected by the decree, as distinguished from mere interest in the question involved, or a mere
incidental interest.
8
Moreover, the interest of the party plaintiff must be personal and not one based on a
desire to vindicate the constitutional right of some third and related party.
9

There are certain instances however when this Court has allowed exceptions to the rule on legal
standing, as when a citizen brings a case for mandamus to procure the enforcement of a public duty
for the fulfillment of a public right recognized by the Constitution,
10
and when a taxpayer questions the
validity of a governmental act authorizing the disbursement of public funds.
11

Petitioners claim that as Filipino citizens, taxpayers and artists deeply concerned with the
preservation and protection of the country's artistic wealth, they have the legal personality to restrain
respondents Executive Secretary and PCGG from acting contrary to their public duty to conserve the
artistic creations as mandated by the 1987 Constitution, particularly Art. XIV, Secs. 14 to 18, on Arts
and Culture, and R.A. 4846 known as "The Cultural Properties Preservation and Protection Act,"
governing the preservation and disposition of national and important cultural properties. Petitioners
also anchor their case on the premise that the paintings and silverware are public properties
collectively owned by them and by the people in general to view and enjoy as great works of art.
They allege that with the unauthorized act of PCGG in selling the art pieces, petitioners have been
deprived of their right to public property without due process of law in violation of the Constitution.
12

Petitioners' arguments are devoid of merit. They lack basis in fact and in law. They themselves
allege that the paintings were donated by private persons from different parts of the world to the
Metropolitan Museum of Manila Foundation, which is a non-profit and non-stock corporations
established to promote non-Philippine arts. The foundation's chairman was former First Lady Imelda
R. Marcos, while its president was Bienvenido R. Tantoco. On this basis, the ownership of these
paintings legally belongs to the foundation or corporation or the members thereof, although the
public has been given the opportunity to view and appreciate these paintings when they were placed
on exhibit.
Similarly, as alleged in the petition, the pieces of antique silverware were given to the Marcos couple
as gifts from friends and dignitaries from foreign countries on their silver wedding and anniversary,
an occasion personal to them. When the Marcos administration was toppled by the revolutionary
government, these paintings and silverware were taken from Malacaang and the Metropolitan
Museum of Manila and transferred to the Central Bank Museum. The confiscation of these
properties by the Aquino administration however should not be understood to mean that the
ownership of these paintings has automatically passed on the government without complying with
constitutional and statutory requirements of due process and just compensation. If these properties
were already acquired by the government, any constitutional or statutory defect in their acquisition
and their subsequent disposition must be raised only by the proper parties the true owners
thereof whose authority to recover emanates from their proprietary rights which are protected by
statutes and the Constitution. Having failed to show that they are the legal owners of the artworks or
that the valued pieces have become publicly owned, petitioners do not possess any clear legal right
whatsoever to question their alleged unauthorized disposition.
Further, although this action is also one of mandamus filed by concerned citizens, it does not fulfill
the criteria for a mandamus suit. In Legaspi v. Civil Service Commission,
13
this Court laid down the
rule that a writ of mandamus may be issued to a citizen only when the public right to be enforced and the
concomitant duty of the state are unequivocably set forth in the Constitution. In the case at bar,
petitioners are not after the fulfillment of a positive duty required of respondent officials under the 1987
Constitution. What they seek is the enjoining of an official act because it is constitutionally infirmed.
Moreover, petitioners' claim for the continued enjoyment and appreciation by the public of the artworks is
at most a privilege and is unenforceable as a constitutional right in this action for mandamus.
Neither can this petition be allowed as a taxpayer's suit. Not every action filed by a taxpayer can
qualify to challenge the legality of official acts done by the government. A taxpayer's suit can prosper
only if the governmental acts being questioned involve disbursement of public funds upon the theory
that the expenditure of public funds by an officer of the state for the purpose of administering an
unconstitutional act constitutes a misapplication of such funds, which may be enjoined at the request
of a taxpayer.
14
Obviously, petitioners are not challenging any expenditure involving public funds but the
disposition of what they allege to be public properties. It is worthy to note that petitioners admit that the
paintings and antique silverware were acquired from private sources and not with public money.
Anent the second requisite of actual controversy, petitioners argue that this case should be resolved
by this Court as an exception to the rule on moot and academic cases; that although the sale of the
paintings and silver has long been consummated and the possibility of retrieving the treasure trove is
nil, yet the novelty and importance of the issues raised by the petition deserve this Court's attention.
They submit that the resolution by the Court of the issues in this case will establish future guiding
principles and doctrines on the preservation of the nation's priceless artistic and cultural possessions
for the benefit of the public as a whole.
15

For a court to exercise its power of adjudication, there must be an actual case of controversy one
which involves a conflict of legal rights, an assertion of opposite legal claims susceptible of judicial
resolution; the case must not be moot or academic or based on extra-legal or other similar
considerations not cognizable by a court of justice.
16
A case becomes moot and academic when its
purpose has become stale,
17
such as the case before us. Since the purpose of this petition for prohibition
is to enjoin respondent public officials from holding the auction sale of the artworks on a particular date
11 January 1991 which is long past, the issues raised in the petition have become moot and academic.
At this point, however, we need to emphasize that this Court has the discretion to take cognizance of
a suit which does not satisfy the requirements of an actual case or legal standing when paramount
public interest is involved.
18
We find however that there is no such justification in the petition at bar to
warrant the relaxation of the rule.
Section 2 of R.A. 4846, as amended by P.D. 374, declares it to be the policy of the state to preserve
and protect the important cultural properties and national cultural treasures of the nation and to
safeguard their intrinsic value. As to what kind of artistic and cultural properties are considered by
the State as involving public interest which should therefore be protected, the answer can be
gleaned from reading of the reasons behind the enactment of R.A. 4846:
WHEREAS, the National Museum has the difficult task, under existing laws and
regulations, of preserving and protecting the cultural properties of the nation;
WHEREAS, inumerable sites all over the country have since been excavated
for cultural relics, which have passed on to private hands, representing priceless
cultural treasure that properly belongs to the Filipino people as their heritage;
WHEREAS, it is perhaps impossible now to find an area in the Philippines, whether
government or private property, which has not been disturbed by commercially-
minded diggers and collectors, literally destroying part of our historic past;
WHEREAS, because of this the Philippines has been charged as incapable of
preserving and protecting her cultural legacies;
WHEREAS, the commercialization of Philippine relics from the contact period, the
Neolithic Age, and the Paleolithic Age, has reached a point perilously placing beyond
reach of savants the study and reconstruction of Philippine prehistory; and
WHEREAS, it is believed that more stringent regulation on movement and a limited
form of registration of important cultural properties and of designated national cultural
treasures is necessary, and that regardless of the item, any cultural property
exported or sold locally must be registered with the National Museum to control the
deplorable situation regarding our national cultural properties and to implement the
Cultural Properties Law (emphasis supplied).
Clearly, the cultural properties of the nation which shall be under the protection of the state are
classified as the "important cultural properties" and the "national cultural treasures." "Important
cultural properties" are cultural properties which have been singled out from among the innumerable
cultural properties as having exceptional historical cultural significance to the Philippines but are not
sufficiently outstanding to merit the classification of national cultural treasures.
19
On the other hand, a
"national cultural treasures" is a unique object found locally, possessing outstanding historical, cultural,
artistic and/or scientific value which is highly significant and important to this country and nation.
20
This
Court takes note of the certification issued by the Director of the Museum that the Italian paintings and
silverware subject of this petition do not constitute protected cultural properties and are not among those
listed in the Cultural Properties Register of the National Museum.
We agree with the certification of the Director of the Museum. Under the law, it is the Director of the
Museum who is authorized to undertake the inventory, registration, designation or classification, with
the aid of competent experts, of important cultural properties and national cultural
treasures.
21
Findings of administrative officials and agencies who have acquired expertise because their
jurisdiction is confined to specific matters are generally accorded not only respect but at times even
finality if such findings are supported by substantial evidence and are controlling on the reviewing
authorities because of their acknowledged expertise in the fields of specialization to which they are
assigned.
22

In view of the foregoing, this Court finds no compelling reason to grant the petition. Petitioners have
failed to show that respondents Executive Secretary and PCGG exercised their functions with grave
abuse of discretion or in excess of their jurisdiction.
WHEREFORE, for lack of merit, the petition for prohibition and mandamus is DISMISSED.
SO ORDERED.

Republic of the Philippines
SUPREME COURT
Manila
SPECIAL SECOND DIVISION
G.R. No. 155336 July 21, 2006
COMMISSION ON HUMAN RIGHTS EMPLOYEES' ASSOCIATION (CHREA) Represented by its
President, MARCIAL A. SANCHEZ, JR., petitioner,
vs.
COMMISSION ON HUMAN RIGHTS, respondent.
R E S O L U T I O N
CHICO-NAZARIO, J .:
On 25 November 2004, the Court promulgated its Decision
1
in the above-entitled case, ruling in favor
of the petitioner. The dispositive portion reads as follows:
WHEREFORE, the petition is GRANTED, the Decision dated 29 November 2001 of the
Court of Appeals in CA-G.R. SP No. 59678 and its Resolution dated 11 September 2002 are
hereby REVERSED and SET ASIDE. The ruling dated 29 March 1999 of the Civil Service
Commission-National Capital Region is REINSTATED. The Commission on Human Rights
Resolution No. A98-047 dated 04 September 1998, Resolution No. A98-055 dated 19
October 1998 and Resolution No. A98-062 dated 17 November 1998 without the approval of
the Department of Budget and Management are disallowed. No pronouncement as to costs.
2

A Motion for Reconsideration
3
was consequently filed by the respondent to which petitioner filed an
Opposition.
4

In its Motion, respondent prays in the main that this Court reconsiders its ruling that respondent is
not among the constitutional bodies clothed with fiscal autonomy.
To recall, the facts
5
of the case are as follows:
On 14 February 1998, Congress passed Republic Act No. 8522, otherwise known as the
General Appropriations Act of 1998. It provided for Special Provisions Applicable to All
Constitutional Offices Enjoying Fiscal Autonomy. The last portion of Article XXXIII covers the
appropriations of the CHR. These special provisions state:
1. Organizational Structure. Any provision of law to the contrary notwithstanding and
within the limits of their respective appropriations as authorized in this Act, the
Constitutional Commissions and Offices enjoying fiscal autonomy are authorized to
formulate and implement the organizational structures of their respective offices, to
fix and determine the salaries, allowances, and other benefits of their personnel, and
whenever public interest so requires, make adjustments in their personal services
itemization including, but not limited to, the transfer of item or creation of new
positions in their respective offices: PROVIDED, That officers and employees whose
positions are affected by suchreorganization or adjustments shall be granted
retirement gratuities and separation pay in accordance with existing laws, which shall
be payable from any unexpended balance of, or savings in the appropriations of their
respective offices: PROVIDED, FURTHER, That the implementation hereof shall be
in accordance with salary rates, allowances and other benefits authorized under
compensation standardization laws.
2. Use of Savings. The Constitutional Commissions and Offices enjoying fiscal
autonomy are hereby authorized to use savings in their respective appropriations for:
(a) printing and/or publication of decisions, resolutions, and training information
materials; (b) repair, maintenance and improvement of central and regional offices,
facilities and equipment; (c) purchase of books, journals, periodicals and equipment;
(d) necessary expenses for the employment of temporary, contractual and casual
employees; (e) payment of extraordinary and miscellaneous expenses, commutable
representation and transportation allowances, and fringe benefits for their officials
and employees as may be authorized by law; and (f) other official purposes, subject
to accounting and auditing rules and regulations. (Emphasis supplied)
on the strength of this special provisions, the Commission on Human Rights [or CHR],
through its then Chairperson Aurora P. Navarette-Recia and Commissioners Nasser A.
Marohomsalic, Mercedes V. Contreras, Vicente P. Sibulo, and Jorge R. Coquia, promulgated
Resolution No. A98-047 on 04 September 1998, adopting an upgrading and reclassification
scheme among selected positions in the Commission, to wit:
WHEREAS, the General Appropriations Act, FY 1998, R.A. No. 8522 has provided
special provisions applicable to all Constitutional Offices enjoying Fiscal Autonomy,
particularly on organizational structures and authorizes the same to formulate and
implement the organizational structures of their respective offices to fix and
determine the salaries, allowances and other benefits of their respective personnel
and whenever public interest so requires, make adjustments in the personnel
services itemization including, but not limited to, the transfer of item or creation of
new positions in their respective offices: PROVIDED, That officers and employees
whose positions are affected by such reorganization or adjustments shall be granted
retirement gratuities and separation pay in accordance with existing laws, which shall
be payable from any unexpanded balance of, or savings in the appropriations of their
respective offices;
Whereas, the Commission on Human Rights is a member of the Constitutional Fiscal
Autonomy Group (CFAG) and on July 24, 1998, CFAG passed an approved Joint
Resolution No. 49 adopting internal rules implementing the special provisions
heretoforth mentioned;
NOW THEREFORE, the Commission by virtue of its fiscal autonomy hereby
approves and authorizes the upgrading and augmentation of the commensurate
amount generated from savings under Personal Services to support the
implementation of this resolution effective Calendar Year 1998;
Let the Human Resources Development Division (HRDD) prepare the necessary Notice of
Salary Adjustment and other appropriate documents to implement this resolution; x x x
(Emphasis supplied).
Annexed to said resolution is the proposed creation of ten additional plantilla positions,
namely: one Director IV position, with Salary Grade 28 for the Caraga Regional Office, four
Security Officer II with Salary Grade 15, and five Process Servers, with Salary Grade 5 under
the Office of the Commissioners.
On 19 October 1998, CHR issued Resolution No. A98-055 providing for the upgrading or
raising of salary grade of the following positions in the Commission:
x x x x
To support the implementation of such scheme, the CHR, in the same resolution, authorized
the augmentation of a commensurate amount generated from savings under Personnel
Services.
By virtue of Resolution No. A98-062 dated 17 November 1998, the CHR "collapsed" the
vacant positions in the body to provide additional source of funding for said staffing
modification. Among the positions collapsed were: one Attorney III, four Attorney IV, one
Chemist III, three Special Investigator I, one Clerk III, and one accounting Clerk II.
The CHR forwarded said staffing modification and upgrading scheme to the Department of
Budget and Management [DBM] with a request for its approval, but the DBM secretary
Benjamin Diokno denied the request on the following justification:
. . . Based on the evaluations made the request was not favorably considered as it effectively
involved the elevation of the field units from divisions to services.
The present proposal seeks further to upgrade the twelve (12) positions of Attorney VI, SG-
26 to Director IV, SG-28. This would elevate the field units to a bureau or regional office, a
level even higher than the one previously denied.
The request to upgrade the three (3) positions of Director III, SG-27 to Director IV, SG-28, in
the Central Office in effect would elevate the services to Office and change the context from
support to substantive without actual change in functions.
In the absence of a specific provision of law which may be used as a legal basis to elevate
the level of divisions to a bureau or regional office, and the services to offices, we reiterate
our previous stand denying the upgrading of the twelve (12) positions of Attorney VI, SG-26
to Director III, SG-27 or Director IV, SG-28, in the Field Operations Office (FOO) and three
(3) Director III, SG-27 to Director IV, SG-28 in the Central Office.
As represented, President Ramos then issued a Memorandum to the DBM Secretary dated
10 December 1997, directing the latter to increase the number of Plantilla positions in the
CHR both Central and Regional Offices to implement the Philippine Decade Plan on Human
Rights Education, the Philippine Human Rights Plan and Barangay Rights Actions Center in
accordance with existing laws. (Emphasis in the original)
Pursuant to Section 78 of the General Provisions of the General Appropriations Act (GAA)
FY 1998, no organizational unit or changes in key positions shall be authorized unless
provided by law or directed by the President, thus, the creation of a Finance Management
Office and a Public Affairs Office cannot be given favorable recommendation.
Moreover, as provided under Section 2 of RA No. 6758, otherwise known as the
Compensation Standardization Law, the Department of Budget and Management is directed
to establish and administer a unified compensation and position classification system in the
government. The Supreme Court ruled in the case of Victorina Cruz vs. Court of Appeals,
G.R. No. 119155, dated January 30, 1996, that this Department has the sole power and
discretion to administer the compensation and position classification system of the National
Government.
Being a member of the fiscal autonomy group does not vest the agency with the authority to
reclassify, upgrade, and create positions without approval of the DBM. While the members of
the Group are authorized to formulate and implement the organizational structures of their
respective offices and determine the compensation of their personnel, such authority is not
absolute and must be exercised within the parameters of the Unified Position Classification
and Compensation System established under RA 6758 more popularly known as the
Compensation Standardization Law. We therefore reiterate our previous stand on the matter.
(Emphasis supplied)
In light of the DBM's disapproval of the proposed personnel modification scheme, the CSC-
National Capital Region Office, through a memorandum dated 29 March 1999 recommended
to the CSC-Central Office that the subject appointments be rejected owing to the DBM's
disapproval of the plantilla reclassification.
Meanwhile, the officers of petitioner Commission on Human Rights Employees' Association
[CHREA], in representation of the rank and file employees of the CHR, requested the CSC-
Central office to affirm the recommendation of the CSC-Regional Office. CHREA stood its
ground in saying that the DBM is the only agency with appropriate authority mandated by law
to evaluate and approve matters of reclassification and upgrading, as well as creation of
positions.
The CSC-Central Office denied CHREA's request in a Resolution dated 16 December 1999,
and reversed the recommendation of the CSC-Regional Office that the upgrading scheme be
censured. The decretal portion of which reads:
WHEREFORE, the request of Ronnie N. Rosero, Hubert V. Ruiz, Flordeliza A. Briones,
George Q. Dumlao [and], Corazon A. Santos-Tiu, is hereby denied.
CHREA filed a motion for reconsideration, but the CSC-Central Office denied the same on
09 June 2000.
Given the cacophony of judgments between the DBM and the CSC, petitioner CHREA
elevated the matter to the Court of Appeals. The Court of Appeals affirmed the
pronouncement of the CSC-Central Office and upheld the validity of the upgrading, retitling,
and reclassification scheme in the CHR on the justification that such action is within the
ambit of CHR's fiscal autonomy. The fallo of the Court of Appeals decision provides:
IN VIEW OF ALL THE FOREGOING, the instant petition is ordered DISMISSED and
the questioned Civil Service Commission Resolution No. 99-2800 dated December
16, 1999 as well as No. 001354 dated June 9, 2000, are hereby AFFIRMED. No
cost.
Unfazed, the petitioner elevated its case to this Court and successfully obtained the favorable action
in its Decision dated 25 November 2004. In its Motion for Reconsideration of the said Decision, the
respondent defined the assignment of errors
6
for resolution, namely:
I. WITH ALL DUE RESPECT, THE SECOND DIVISION OF THE HONORABLE SUPREME
COURT GRAVELY AND SERIOUSLY ERRED WHEN IT RULED THAT THERE IS NO
LEGAL BASIS TO SUPPORT THE CONTENTION THAT THE CHR ENJOYS FISCAL
AUTONOMY.
II. WITH ALL DUE RESPECT, THE SECOND DIVISION OF THE HONORABLE SUPREME
COURT ERRED IN STATING THAT THE SPECIAL PROVISION OF THE REP. ACT. (SIC)
NO. 8522 DID NOT SPECIFICALLY MENTION CHR AS AMONG THOSE OFFICES TO
WHICH THE SPECIAL PROVISION TO FORMULATE AND IMPLEMENT
ORGANIZATIONAL STRUCTURES APPLY, BUT MERELY STATES ITS COVERAGE TO
INCLUDE CONSTITUTIONAL COMMISSIONS AND OFFICES ENJOYING FISCAL
AUTONOMY;
III. WITH ALL DUE RESPECT, THE SECOND DIVISION OF THE HONORABLE SUPREME
COURT ERRED WHEN IT RULED THAT THE CHR ALTHOUGH ADMITTEDLY A
CONSTITUTIONAL CREATION IS NONETHELESS NOT INCLUDED IN THE GENUS OF
THE OFFICES ACCORDED FISCAL AUTONOMY BY CONSTITUTIONAL OR
LEGISLATIVE FIAT.
IV. WITH ALL DUE RESPECT, THE SECOND DIVISION OF THE HONORABLE SUPREME
COURT ERRED IN DECIDING TO REINSTATE THE RULING DATED 29 MARCH 1999 OF
THE CIVIL SERVICE COMMISSION NATIONAL CAPITAL REGION;
V. WITH ALL DUE RESPECT, THE SECOND DIVISION OF THE HONORABLE SUPREME
COURT ERRED IN DECIDING TO DISALLOW THE COMMISSION ON HUMAN RIGHTS
RESOLUTION NO. A98-047 DATED SEPTEMBER 04, 1998, RESOLUTION NO. A98-055
DATED 19 OCTOBER 1998 AND RESOLUTION NO. A98-062 DATED 17 NOVEMBER
1998 WITHOUT THE APPROVAL OF THE DEPARTMENT OF BUDGET AND
MANAGEMENT.
Although this Court may have been persuaded to take a second look at this case and partly modify
the assailed Decision, such modification shall not materially affect the dispositive portion thereof.
As already settled in the assailed Decision of this Court, the creation of respondent may be
constitutionally mandated, but it is not, in the strict sense, a constitutional commission. Article IX of
the 1987 Constitution, plainly entitled "Constitutional Commissions," identifies only the Civil Service
Commission, the Commission on Elections, and the Commission on Audit. The mandate for the
creation of the respondent is found in Section 17 of Article XIII of the 1987 Constitution on Human
Rights, which reads that
Sec. 17. (1) There is hereby created an independent office called the Commission on Human
Rights.
Thus, the respondent cannot invoke provisions under Article IX of the 1987 Constitution on
constitutional commissions for its benefit. It must be able to present constitutional and/or statutory
basis particularly pertaining to it to support its claim of fiscal autonomy.
The 1987 Constitution expressly and unambiguously grants fiscal autonomy only to the Judiciary,
the constitutional commissions, and the Office of the Ombudsman.
The 1987 Constitution recognizes the fiscal autonomy of the Judiciary in Article VIII, Section 3,
reproduced below
Sec. 3. The Judiciary shall enjoy fiscal autonomy. Appropriations for the Judiciary may not be
reduced by the legislature below the amount appropriated for the previous year and, after
approval, shall be automatically and regularly released.
Constitutional commissions are granted fiscal autonomy by the 1987 Constitution in Article IX, Part
A, Section 5, a provision applied in common to all constitutional commissions, to wit
Sec. 5. The Commission shall enjoy fiscal autonomy. Their approved annual appropriations
shall be automatically and regularly released.
The Office of the Ombudsman enjoys fiscal autonomy by virtue of Article XI, Section 14, of the 1987
Constitution, which provides that
Sec. 14. The Office of the Ombudsman shall enjoy fiscal autonomy. Its approved annual
appropriations shall be automatically and regularly released.
Each of the afore-quoted provisions consists of two sentences stating that: (1) The government
entity shall enjoy fiscal autonomy; and (2) its approved annual appropriation shall be automatically
and regularly released. The respondent anchors its claim to fiscal autonomy on the fourth paragraph
of Article XIII, Section 17, according to which
Sec. 17. x x x
x x x x
(4) The approved annual appropriations of the Commission shall be automatically and
regularly released.
As compared to the previously quoted Article VIII, Section 3; Article IX, Part A, Section 5; and Article
XI, Section 14 of the 1987 Constitution on the Judiciary, the constitutional commissions, and the
Office of the Ombudsman, respectively, Article XIII, Section 17(4) on the Commission of Human
Rights (CHR) evidently does not contain the first sentence on the express grant of fiscal autonomy,
and reproduces only the second sentence on the automatic and regular release of its approved
annual appropriations. Question now arises as to the significance of such a difference in the way the
said provisions are worded.
To settle this ambiguity, a perusal of the records of the Constitutional Commission (ConCom) is
enlightening.
During the drafting of Article XIII, Section 17(4), of the 1987 Constitution, the ConCom members had
the following discussion
7

MR. BENGZON. I have another paragraph, Madam President. This could be a separate
section or another paragraph depending on what the committee desires and what the
Committee on Style would wish: "THE COMMISSION SHALL ENJOY FISCAL AUTONOMY.
THE APPROVED ANNUAL APPROPRIATIONS OF THE COMMISSION SHALL BE
AUTOMATICALLY AND REGULARLY RELEASED." It will align this Human Rights
Commission with other commissions that we have created in the Constitution in order to
further insure the independence of the Human Rights Commission.
MR. DAVIDE. Madam President.
THE PRESIDENT. Commissioner Davide is recognized.
MR. DAVIDE. I introduced that particular amendment yesterday, but there was a proposed
modification presented by Commissioner Maambong to delete the first sentence. I am in
favor of the modification presented earlier. So, may I propose that the particular amendment
should not carry the first sentence, only the second sentence which reads: "THE
APPROVED ANNUAL APPROPRIATIONS OF THE COMMISSION SHALL BE
AUTOMATICALLY AND REGULARLY RELEASED."
MR. BENGZON. Why do we want to delete the sentence which says "THE COMMISSION
SHALL ENJOY FISCAL AUTONOMY"?
MR. DAVIDE. That would be a surplusage because the autonomy actually intended is
the automatic release of these appropriations.
MR. BENGZON. If that is the case, then maybe we should also delete such sentence in the
other articles that we have approved. I will just leave it up to the Committee on Style, as long
as it is in the record that that is the sense of the Commission, Madam President.
THE PRESIDENT. What does the committee say on this point?
MR. SARMIENTO. Accepted, Madam President. We leave it to the Committee on Style, so
long as the intent is there.
MR. BENGZON. In other words, what we are really saying is that if the Committee on Style
feels that it would be more elegant and it is a surplusage to include the first sentence, then
so be it as long as it is recorded in the Journal that it is the sense of the Commission that the
Human Rights Commission will enjoy fiscal autonomy.
MR. GUINGONA. Madam President.
MR. MONSOD. Madam President.
THE PRESIDENT. Commissioner Guingona is recognized.
MR. GUINGONA. May I respectfully invite the attention of the honorable Commissioners that
there are two committees that are tasked with the same work and, therefore, reference can
be made not only to the Committee on Style but also to the Sponsorship Committee.
Thank you, Madam President.
MR. MONSOD. Madam President.
THE PRESIDENT. Commissioner Monsod is recognized.
MR. MONSOD. Maybe we should just say that the minimum condition that the committee
agrees to is: "THE APPROVED ANNUAL APPROPRIATIONS OF THE COMMISSION
SHALL BE AUTOMATICALLY AND REGULARLY RELEASED." That is a minimum condition
and we just allow the committees to add the first sentence if they wish. But with the second
sentence, the sense is already there.
MR. BENGZON. No problem, Madam President.
THE PRESIDENT. This was taken up yesterday.
MR. BENGZON. But it was deferred, I understand, Madam President. So if we approve this
now, then it will be firmly included.
THE PRESIDENT. So, will the Commissioner please read it now as it is?
MR. BENGZON. I will read the amendment as accepted. "THE APPROVED ANNUAL
APPROPRIATIONS OF THE COMMISSION SHALL BE AUTOMATICALLY AND
REGULARLY RELEASED."
THE PRESIDENT. Is there any objection to this proposed amendment which has been
accepted by the committee?
MR. PADILLA. Madam President.
THE PRESIDENT. Commissioner Padilla is recognized.
MR. PADILLA. The wording reminds me of the provisions under the judiciary and the
constitutional commissions. Is the intention to elevate the position of this proposed
commission which is only investigative and recommendatory to the high dignity of a
constitutional commission, as well as the independence of the judiciary, by making a positive
statement in the Constitution that its appropriation shall be released automatically and so
forth? It seems that we are complicating and also reiterating several provisions that would
make our Constitution not only too long but too complicated. I wonder if that is the purpose
because even other bodies with semi-judicial functions do not enjoy such kind of
constitutional guarantee. It is just an inquiry.
MR. BENGZON. It is not so much the fact that we want to elevate this into a constitutional
commission as it is more of an insurance that the independence of the Human Rights
Commission, even though it is not considered as a constitutional commission as
contemplated and as compared to the Civil Service Commission, the COMELEC and COA,
is maintained. And this is as elegant as the other sentences. So, we submit the same to the
body.
MR. SARMIENTO. The proposed amendment has been accepted by the committee, but we
have this objection from Commissioner Padilla. So, may we throw the issue to the body?
MR. GUINGONA. Madam President, just for clarification. Does the amendment of the
honorable Commissioner Bengzon refer only to the release? I was thinking that although I
am very, very strongly in favor of this commission and would give it one of the top priorities,
there are other top priorities that we may want to address ourselves to. For example, in the
Committee on Human Resources, we would like to give top priority to education; therefore, if
this does not refer only to an automatic and regular release but would refer to the matter of
priorities in the preparation of the budget, then I am afraid that we might already be curtailing
too much the discretion on the part of both the legislature and the executive to determine the
priorities that should be given at a given time.
MR. BENGZON. Madam President, the sentence means what it says and it is clear.
THE PRESIDENT. Will the Commissioner please read.
MR. BENGZON. It only refers to the release which should be automatic and regular.
THE PRESIDENT. Please state it again so that we will be clarified before we take a vote.
MR. GUINGONA. Thank you, Madam President.
MR. BENGZON. It will read: "THE APPROVED ANNUAL APPROPRIATIONS OF THE
COMMISSION SHALL BE AUTOMATICALLY AND REGULARLY RELEASED."
VOTING
THE PRESIDENT. As many as are in favor of this particular section, please raise their hand.
(Several Members raised their hand.)
As many as are against, please raise their hand. (Few Members raised their hand.)
As many as are abstaining, please raise their hand. (Two Members raised their hand.)
The results show 26 votes in favor, 4 against and 2 abstentions; the amendment is
approved. (Emphases supplied.)
The respondent relies on the statement of then Constitutional Commissioner Hilario G. Davide, Jr.
that the first sentence on the express grant of fiscal autonomy to the respondent was deleted from
Article XIII, Section 17(4) of the 1987 Constitution because it was a surplusage. Respondent posits
that the second sentence, directing the automatic and regular release of its approved annual
appropriations, has the same essence as the express grant of fiscal autonomy, thus rendering the
first sentence redundant and unnecessary.
This Court, however, believes otherwise. The statement of then Constitutional Commissioner Davide
should be read in full. Referring to the deletion of the first sentence on the express grant of fiscal
autonomy, he explained that the first sentence "would be a surplusage because the
autonomy actually intended is the automatic release of these appropriations.
8
" (Emphasis
supplied.)
Even in the latter discussion between Constitutional Commissioners Jose F.S. Bengzon, Jr. and
Serafin V.C. Guingona, wherein Constitutional Commissioner Guingona asked for clarification
whether respondent shall also be extended priorities in the preparation of the national budget,
Constitutional Commissioner Bengzon replied that "x x x the sentence means what it says and it is
clear,"
9
and that "[i]t only refers to the release which should be automatic and regular."
10

Therefore, after reviewing the deliberations of the ConCom on Article XIII, Section 17(4), of the 1987
Constitution, in its entirety, not just bits and pieces thereof, this Court is convinced that the ConCom
had intended to grant to the respondent the privilege of having its approved annual appropriations
automatically and regularly released, but nothing more. While it may be conceded that the automatic
and regular release of approved annual appropriations is an aspect of fiscal autonomy, it is just one
of many others.
This Court has already defined the scope and extent of fiscal autonomy in the case of Bengzon v.
Drilon,
11
as follows
As envisioned in the Constitution, the fiscal autonomy enjoyed by the Judiciary, the Civil
Service Commission, the Commission on Audit, the Commission on Elections, and the Office
of the Ombudsman contemplates a guarantee of full flexibility to allocate and utilize their
resources with the wisdom and dispatch that their needs require. It recognizes the power and
authority to levy, assess and collect fees, fix rates of compensation not exceeding the
highest rates authorized by law for compensation and pay plans of the government and
allocate and disburse such sums as may be provided by law or prescribed by them in the
course of the discharge of their functions.
Fiscal autonomy means freedom from outside control. x x x
The foregoing excerpt sufficiently elucidates that the grant of fiscal autonomy is more extensive than
the mere automatic and regular release of approved annual appropriations of the government entity.
It is also worth stressing herein that in Bengzon v. Drilon, this Court, ruling En Banc, only recognized
the fiscal autonomy of the Judiciary; the constitutional commissions, namely, the Civil Service
Commission, the Commission on Audit, and the Commission on Elections; and the Office of the
Ombudsman. Respondent is conspicuously left out of the enumeration.
Moreover, the ConCom had the following deliberations
12
on the meaning of the fiscal autonomy
extended to the constitutional commissions in what is to become later Article IX, Part A, Section 5, of
the 1987 Constitution
THE PRESIDING OFFICER (Mr. Treas). Commissioner de Castro is recognized.
MR. DE CASTRO: Thank you.
This morning, I asked the proponent of this resolution what is included in the term "fiscal
autonomy." The answer I got is that it is for the automatic release of the budget. I propose
that the sentence "The Commissions shall enjoy fiscal autonomy" be deleted but the second
sentence shall remain. The reason is that it is already redundant. Fiscal autonomy means
the automatic release of appropriations.
MR. MONSOD. Mr. Presiding Officer, may we answer the honorable Commissioner.
I think the answer of the Chairman of our Committee this morning was that it would
involve the automatic and regular release of the funds once approved. In addition, we
are suggesting that fiscal autonomy include the nonimposition of any other
procedures, for example, a preaudit system in the commissions or bodies that enjoy
fiscal autonomy. So, actually, the definition of fiscal autonomy would be a bit broader
than just the automatic release.
MR. DE CASTRO. Does the Commissioner mean that these commissions will not be
subjected to preaudit?
MR. MONSOD. Our proposal actually in the provisions on the Commission on Audit is that
they be subjected to comprehensive postaudit procedures and where their internal control
system is inadequate, in the opinion of the Commission on Audit, then the commission may
also take such measures as are necessary to correct the inadequacies which might include
special preaudit systems.
THE PRESIDING OFFICER (Mr. Treas). The Chair understands, therefore, that the
proposed amendment of Commissioner de Castro is not acceptable to the Committee?
MR. DE CASTRO. Not yet, Mr. Presiding Officer, because we are still on the answer to me
this morning, which stated the record will bear me out that fiscal autonomy means the
automatic release of appropriations. It means the automatic release and nothing more. We
were in the same Committee and when we asked the COA about this, they insisted that
there must be preaudit. If fiscal autonomy means that there will be no preaudit, I do not know
what will happen to this.
THE PRESIDING OFFICER (Mr. Treas). So, what is the stand of the Committee insofar as
the proposed amendment of Commissioner de Castro is concerned?
MR. DE CASTRO. May I just say one sentence, Mr. Presiding Officer? If the Committee's
stand is that fiscal autonomy means the automatic release of the appropriations, then I say
that the first sentence "The Commissions shall enjoy fiscal autonomy" -- should be deleted
because it is a repetition of the second sentence.
Thank you.
MR. MONSOD. Mr. Presiding Officer, the position of the Committee is that fiscal
autonomy may include other things than just the automatic and regular release of the
funds.
THE PRESIDING OFFICER (Mr. Treas). With that explanation, what is the pleasure of
Commissioner de Castro? Does he insist on his amendment?
MR. DE CASTRO. Is the Chairman changing his answer from this morning's question? If he
does, I will ask some more questions about fiscal autonomy.
MR. MONSOD. Mr. Presiding Officer, I think at the beginning of this exchange, we already
told the honorable Commissioner that the Chairman of the Committee had not meant to
make it an all-inclusive definition. And if he was misled into thinking of another meaning, we
apologize for it. But our position is that fiscal autonomy would include other rights than
just merely automatic and regular disbursement.
MR. DE CASTRO. Does it include exception from preaudit?
MR. MONSOD. Yes, it would include the imposition of certain preaudit requirements for
release, because if the preaudit requirements are inserted into the process of release, it
would defeat the objective of automatic and regular release.
Based on the preceding exchange, it can be derived that the first sentence of Article IX, Part A,
Section 5, of the 1987 Constitution, expressly granting fiscal autonomy to constitutional
commissions, does not have the same meaning as the second sentence, directing the automatic and
regular release of their approved annual appropriations, hence, the resistance of Constitutional
Commissioner Christian S. Monsod to the suggested amendment of Constitutional Commissioner
Crispino M. De Castro to just delete the first sentence.
In addition, the Constitutional Fiscal Autonomy Group (CFAG), to which respondent avers
membership, defined the term "fiscal autonomy" in its Joint Resolution No. 49, dated 24 July 1998,
as follows
IV. Definition of Terms:
1. Fiscal Autonomy shall mean independence or freedom regarding financial matters
from outside control and is characterized by self direction or self determination. It
does not mean mere automatic and regular release of approved
appropriations to agencies vested with such power in a very real sense, the fiscal
autonomy contemplated in the constitution is enjoyed even before and, with more
reasons, after the release of the appropriations. Fiscal autonomy encompasses,
among others, budget preparation and implementation, flexibility in fund utilization of
approved appropriations, use of savings and disposition of receipts. x x x (Emphasis
supplied.)
While the assailed Decision and the present Resolution may render the status of respondent's
membership in CFAG uncertain, the then Chairperson of respondent, Aurora P. Navarrete-Recina,
duly signed CFAG Joint Resolution No. 49, and respondent should be held bound by the definition of
fiscal autonomy therein. CFAG Joint Resolution No. 49 categorically declares that fiscal autonomy
means more than just the automatic and regular release of approved appropriation, and also
encompasses, among other things: (1) budget preparation and implementation; (2) flexibility in fund
utilization of approved appropriations; and (3) use of savings and disposition of receipts. Having
agreed to such a definition of fiscal autonomy, respondent has done a complete turn-about herein
and is now contradicting itself by arguing that the automatic and regular release of its approved
annual appropriations is already tantamount to fiscal autonomy.
Consequently, this Court concludes that the 1987 Constitution extends to respondent a certain
degree of fiscal autonomy through the privilege of having its approved annual appropriations
released automatically and regularly. However, it withholds from respondent fiscal autonomy, in its
broad or extensive sense, as granted to the Judiciary, constitutional commissions, and the Office of
the Ombudsman. Operative herein is the rule of statutory construction,expressio unius est exclusio
alterius, wherein the express mention of one person, thing, or consequence implies the exclusion of
all others.
13
The rule proceeds from the premise that the legislature (or in this case, the ConCom)
would not have made specific enumerations in a statute (or the Constitution) had the intention not
been to restrict its meaning and to confine its terms to those expressly mentioned.
14

The provisions of Executive Order No. 292, otherwise known as the Administrative Code of 1987, on
the fiscal autonomy of constitutional commissions, the Office of the Ombudsman, and the
respondent, merely follow the phraseology used in the corresponding provisions of the 1987
Constitution, thus
Book II, Chapter 5, Section 26. Fiscal Autonomy. The Constitutional Commissions shall
enjoy fiscal autonomy. The approved annual appropriations shall be automatically and
regularly released.
Book V, Title II, Subtitle B, Section 4. Fiscal Autonomy. The Office of the Ombudsman shall
enjoy fiscal autonomy. Its approved annual appropriations shall be automatically and
regularly released.
Book V, Title II, Subtitle A, Section 6. Annual Appropriations. The approved annual
appropriations of the Commission on Human Rights shall be automatically and regularly
released.
While the Administrative Code of 1987 has no reference to the fiscal autonomy of the Judiciary, it
does have provisions on the fiscal autonomy of the constitutional commissions and the Office of the
Ombudsman. It is very interesting to note that while Book II, Chapter 5, Section 26 (on constitutional
commissions) and Book V, Title 2, Subtitle B, Section 4 (on the Office of the Ombudsman) of the
Code are entitled "Fiscal Autonomy," Book V, Title 2, Subtitle A, Section 6 (on respondent) bears the
title "Annual Appropriations." Further, the provisions on the constitutional commissions and the
Office of the Ombudsman in the Administrative Code of 1987, just like in the 1987 Constitution, are
composed of two sentences: (1) The government entity shall enjoy fiscal autonomy; and (2) Its
approved annual appropriation shall be automatically and regularly released. The provision on
respondent in the same Code is limited only to the second sentence.
Respondent asserts that it is granted fiscal autonomy by Book VI, Chapter 1, Section 1, paragraph 9,
of the Administrative Code of 1987, which reads
SEC. 1. Constitutional Policies on the Budget.
x x x x
(9) Fiscal autonomy shall be enjoyed by the Judiciary, Constitutional Commissions, Office of
the Ombudsman, Local Government and Commission on Human Rights.
As its title suggests, the afore-cited provision is supposed to merely re-state the policies on budget
as declared by the 1987 Constitution and, therefore, cannot grant or extend to the respondent a
privilege not found in the 1987 Constitution. Book VI of the Administrative Code of 1987, under
which the said provision is found, pertains to National Government Budgeting. Respondent may
have been included in the enumeration of fiscally autonomous government entities because it does
enjoy an aspect of fiscal autonomy, that of the automatic and regular release of its approved annual
appropriations from the national budget. The general declaration of fiscal autonomy of the
respondent in Section 1, paragraph 9, of Book V of the Administrative Code of 1987 on National
Government Budgeting, must be qualified and limited by Section 6 of Book V, Title II, Subtitle A of
the same Code specifically pertaining to respondent. It should be borne in mind that the general rule
is that a word, phrase or provision should not be construed in isolation, but must be interpreted in
relation to other provisions of the law.
15

To reiterate, under the Constitution, as well as the Administrative Code of 1987, respondent enjoys
fiscal autonomy only to the extent that its approved annual appropriations shall be automatically and
regularly released, but nothing more.
On the main issue of whether or not the approval by the Department of Budget and Management
(DBM) is a condition precedent to the enactment of an upgrading, reclassification, creation and
collapsing of plantilla positions in the CHR, this Court staunchly holds that as prescinding from the
legal and jurisprudential yardsticks discussed in length in the assailed Decision, the imprimatur of
the DBM must first be sought prior to implementation of any reclassification or upgrading of positions
in government.
Regardless of whether or not respondent enjoys fiscal autonomy, this Court shares the stance of the
DBM that the grant of fiscal autonomy notwithstanding, all government offices must, all the same,
kowtow to the Salary Standardization Law. This Court is of the same mind with the DBM
16
on its
standpoint, thus
Being a member of the fiscal autonomy group does not vest the agency with the authority to
reclassify, upgrade, and create positions without approval of the DBM. While the members of
the Group are authorized to formulate and implement the organizational structures of their
respective offices and determine the compensation of their personnel, such authority is not
absolute and must be exercised within the parameters of the Unified Position Classification
and Compensation System established under RA 6758 more popularly known as the
Compensation Standardization Law. x x x (Emphasis supplied).
To drive home this point, in the special provision covering the Judiciary as quoted above, the
judiciary was not vested with the power to formulate and implement organizational
structures beyond the salary rates, allowances and other benefits under the compensation
standardization laws. Stated differently, although the Judiciary is allowed to reorganize, any such
reorganization must, nevertheless, be in strict adherence to the Salary Standardization Law.Ergo,
any reorganization therein must be with the conformity of the DBM inasmuch as it is the government
arm tasked by law to implement the Salary Standardization Law.
In Republic Act No. 9227, or "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,"
the grant of Special Allowances to members of the Judiciary did not operate to exempt members
thereof from the Salary Standardization Law. In Section 7 of Republic Act No. 9227, the Supreme
Court and the DBM were specifically tasked to issue the necessary guidelines for the proper
implementation of this Act in respect to funds coming from the National Treasury.
17
Resultantly, the
Supreme Court and the DBM issued Joint Circular No. 2004-1 on 13 January 2004 which provided
guidelines on the funding source for the grant of this special allowance. Thus, although
Administrative Order No. 137, issued by President Gloria Macapagal-Arroyo on 27 December 2005,
extended to the Chairman and Commissioners or Members of the CHR the same benefits and
privileges enjoyed by members of constitutional commissions and the Judiciary in the matter of
rationalized rate of allowances and liberalized computation of retirement benefits and accumulated
leave credits, it still does not exempt respondent from the Salary Standardization Law.
If the judiciary, a co-equal branch of government, which was expressly granted by the Constitution
with fiscal autonomy, is required to conform to the Salary Standardization Law and is subject to the
scrutiny of the DBM, sagaciously, the respondent cannot be deemed to enjoy a better position than
the Judiciary. The respondent must, likewise, toe the line.
This Court shall no longer belabor the point it has already delved upon in length in its Decision that
Congress has delegated to the DBM the power to administer the Salary Standardization Law, which
power is part of the system of checks and balances or system of restraints in the Philippine
government. This Court, thus, reiterates the point that the DBM's exercise of such authority is not in
itself an arrogation inasmuch as it is pursuant to the 1987 Constitution, the paramount law of the
land; the Salary Standardization Law; and the Administrative Code of 1987.
In line with its role to breathe life into the policy behind the Salary Standardization Law of "providing
equal pay for substantially equal work and to base differences in pay upon substantive differences in
duties and responsibilities, and qualification requirements of the positions," the DBM, in the case
under review, made a determination, after a thorough evaluation, that the reclassification and
upgrading scheme proposed by the respondent lacks legal rationalization.
The DBM expounded that Section 78 of the General Provisions of the General Appropriations Act
(GAA), FY 1998, which the respondent heavily relies upon to justify its reclassification scheme,
explicitly provides that "no organizational unit or changes in key positions shall be authorized unless
provided by law or directed by the President." Here, the DBM discerned that there is no law
authorizing the creation of a Finance Management Office and a Public Affairs Office in the CHR.
Anent respondent's proposal to upgrade twelve (12) positions of Attorney VI, SG-28 to Director IV,
SG-28, and three (3) positions of Director III, SG-27 to Director IV, SG-28, in its Central Office, the
DBM denied the same as this would change the context from support to substantive without actual
change in functions.
This view of the DBM, as the law's designated body to implement and administer a unified
compensation system, is beyond cavil. The interpretation of an administrative government agency,
which is tasked to implement a statute, is accorded great respect and ordinarily controls the
construction of the courts. In Energy Regulatory Board v. Court of Appeals,
18
the Court echoed the
basic rule that the courts will not interfere in matters which are addressed to the sound discretion of
government agencies entrusted with the regulation of activities coming under the special technical
knowledge and training of such agencies.
To be sure, considering his expertise on matters affecting the nation's coffers, the Secretary of the
DBM, as the President's alter ego, knows from where he speaks inasmuch as he has the front seat
view of the adverse effects of an unwarranted upgrading or creation of positions in the CHR in
particular and in the entire government in general.
As the final thrust, given this Court's previous pronouncement in the present Resolution that the
fiscal autonomy granted to the respondent by the 1987 Constitution and the Administrative Code of
1987 shall be limited only to the automatic and regular release of its approved annual appropriations,
respondent is precluded from invoking the Special Provisions Applicable to All Constitutional Offices
Enjoying Fiscal Autonomy in the 1998 GAA. The said Special Provisions read
Special Provisions Applicable to All Constitutional Offices Enjoying Fiscal Autonomy
1. Organization Structure. Any provision of law to the contrary notwithstanding and within the
limits of their respective appropriations as authorized in this Act, the Constitutional
Commissions and Offices enjoying fiscal autonomy are authorized to formulate and
implement the organizational structures of their respective offices, to fix and determine the
salaries, allowances, and other benefits of their personnel, and whenever public interest so
requires, make adjustments in the personal services itemization including, but not limited to,
the transfer of item or creation of new positions in their respective offices: PROVIDED, That
the officers and employees whose positions are affected by such reorganization or
adjustments shall be granted retirement gratuities and separation pay in accordance with
existing laws, which shall be payable from any unexpended balance of, or savings in the
appropriations of their respective offices: PROVIDED, FURTHER, That the implementation
hereof shall be in accordance with salary rates, allowances and other benefits authorized
under compensation standardization laws.
2. Use of Savings. The Constitutional Commissions and Offices enjoying fiscal autonomy are
hereby authorized to use savings in their respective appropriations for; (a) printing and/or
publication of decisions, resolutions, and training information materials; (b) repair,
maintenance and improvement of central and regional offices, facilities and equipment; (c)
purchase of books, journals, periodicals and equipment; (d) necessary expenses for the
employment or temporary, contractual and casual employees; (e) payment of extraordinary
and miscellaneous expenses, commutable representation and transportation allowances,
and fringe benefits for their officials and employees as may be authorized by law; and (f)
other official purposes, subject to accounting and auditing rules and regulations.
It is unequivocal that the afore-quoted Special Provisions of the 1998 GAA refer to the broad and
extensive concept of fiscal autonomy. They already go beyond ensuring the automatic and regular
release of the approved annual appropriations, but already enumerate the ways by which the named
government entities can use their appropriations to effect changes in their organizational structure
and their savings for certain official purposes. Even assuming arguendo that the said Special
Provisions are applicable to respondent, it should be noted that the last sentence in paragraph 1
qualifies the power of a fiscally autonomous government entity to formulate and implement changes
in its organizational structure so that, "x x x the implementation hereof shall be in accordance with
salary rates, allowances and other benefits authorized under compensation standardization laws."
And, as exhaustively expounded in the assailed Decision and the herein Resolution, only the DBM
has the authority and the technical expertise to determine compliance by respondent to the
provisions of the Salary Standardization Law.
WHEREFORE, the Motion for Reconsideration is PARTIALLY GRANTED. The assailed decision of
this Court dated 25 November 2004 is hereby MODIFIED, declaring the respondent CHR as a
constitutional body enjoying limitedfiscal autonomy, in the sense that it is entitled to the automatic
and regular release of its approved annual appropriations; nonetheless, it is still required to conform
to the Salary Standardization Law. Accordingly, its entire reclassification scheme remains subject to
the approval of the DBM. No pronouncement as to costs.
SO ORDERED.
Puno, Chairman, Austria-Martinez, Callejo, Sr., Tinga, J.J., concur.
EN BANC
[G.R. No. 157509. January 18, 2005]
AUTOMOTIVE INDUSTRY WORKERS ALLIANCE (AIWA) and its
Affiliated Unions: Mitsubishi Motors Workers Phils. Union;
Mitsubishi Motors Phils. Supervisors Union, Nissan Motors
Phils., Inc. Workers Union, Toyota Motors Phils. Workers Union,
DURASTEEL WORKERS UNION, FILSHUTTERS EMPLOYEES &
WORKERS UNION, NATIONAL LABOR UNION, PEPSI-COLA
SUPERVISORS AND EMPLOYEES UNION, PSBA FACULTY
ASSOCIATION, PLDT SECURITY PERSONNEL UNION,
PUREFOODS UNIFIED LABOR ORGANIZATION, SAMAHANG
MANGGAGAWA NG BICUTAN CONTAINERS CORP.,
SAMAHANG MANGGAGAWA NG CINDERELLA, SAMAHANG
MANGGAGAWA NG LAURAS FOOD
PRODUCTS, petitioners, vs. HON. ALBERTO ROMULO, in his
capacity as Executive Secretary, and HON. PATRICIA STO.
TOMAS, in her capacity as Secretary of Labor and
Employment, respondents.
D E C I S I O N
CHICO-NAZARIO, J .:
Petitioners, composed of ten (10) labor unions, call upon this Court to exercise its
power of judicial review to declare as unconstitutional an executive order assailed to be
in derogation of the constitutional doctrine of separation of powers.
In an original action for certiorari, petitioners invoke their status as labor unions and
as taxpayers whose rights and interests are allegedly violated and prejudiced by
Executive Order No. 185 dated 10 March 2003 whereby administrative supervision over
the National Labor Relations Commission (NLRC), its regional branches and all its
personnel including the executive labor arbiters and labor arbiters was transferred from
the NLRC Chairperson to the Secretary of Labor and Employment. In support of their
position,
[1]
petitioners argue that the NLRC -- created by Presidential Decree No. 442,
otherwise known as the Labor Code, during Martial Law was an integral part of the
Department (then Ministry) of Labor and Employment (DOLE) under the administrative
supervision of the Secretary of Justice. During the time of President Corazon C.
Aquino, and while she was endowed with legislative functions after EDSA I, Executive
Order No. 292
[2]
was issued whereby the NLRC became an agency attached to the
DOLE for policy and program coordination and for administrative supervision. On 02
March 1989, Article 213 of the Labor Code was expressly amended by Republic Act No.
6715 declaring that the NLRC was to be attached to the DOLE for program and policy
coordination onlywhile the administrative supervision over the NLRC, its regional
branches and personnel, was turned over to the NLRC Chairman. The subject E.O. No.
185, in authorizing the Secretary of Labor to exercise administrative supervision over
the NLRC, its regional branches and personnel, allegedly reverted to the pre-Rep. Act
No. 6715 set-up, amending the latter law which only Congress can do.
The respondents herein, as represented by the Office of the Solicitor General,
opposed the petition on procedural
[3]
and substantive
[4]
grounds. Procedurally, it is
alleged that the petition does not pose an actual case or controversy upon which judicial
review may be exercised as petitioners have not specifically cited how E.O. No. 185 has
prejudiced or threatened to prejudice their rights and existence as labor unions and as
taxpayers. Closely intertwined therewith, respondents further argue that petitioners
have no locus standi to assail the validity of E.O. No. 185, not even in their capacity as
taxpayers, considering that labor unions are exempt from paying taxes, citing Sec. 30 of
the Tax Reform Act of 1997. Even assuming that their individual members are
taxpayers, respondents maintain that a taxpayer suit will not prosper as E.O. No. 185
does not require additional appropriation for its implementation. As the petition can be
decided without passing on the validity of the subject executive order, respondents
conclude that the same should be forthwith dismissed.
Even on the merits, respondents advance the view that the petition must fail as the
administrative supervision granted by the Labor Code to the NLRC Chairman over the
NLRC, its regional branches and personnel, does not place them beyond the
Presidents broader power of control and supervision, a power conferred no less than by
the Constitution in Section 17, Article VII thereof. Thus, in the exercise of the
Presidents power of control and supervision, he can generally oversee the operations
of the NLRC, its regional branches and personnel thru his alter ego, the Secretary of
Labor, pursuant to the doctrine of qualified political agency.
In their Reply,
[5]
petitioners affirm their locus standi contending that they are suing
for and in behalf of their members estimated to be more or less fifty thousand (50,000)
workers who are the real parties to be affected by the resolution of this Court. They
likewise maintain that they are suing in behalf of the employees of the NLRC who have
pending cases for dismissal. Thus, possessed of the necessary standing, petitioners
theorize that the issue before this Court must necessarily be decided as it involves an
act of the Chief Executive amending a provision of law.
For clarity, E.O. No. 185 is hereby quoted:
EXECUTIVE ORDER NO. 185
AUTHORIZING THE SECRETARY OF LABOR AND
EMPLOYMENT TO EXERCISE ADMINISTRATIVE
SUPERVISION OVER THE NATIONAL LABOR RELATIONS
COMMISSION
WHEREAS, Section 17, Article VII of the Constitution provides that the President
shall have control of all executive departments, bureaus and offices and shall ensure
that the laws be faithfully executed;
WHEREAS, the National Labor Relations Commission (NLRC) which was created
by virtue of Presidential Decree No. 442, otherwise known as the Labor Code of the
Philippines, is an agency under the Executive Department and was originally
envisaged as being an integral part of the Department (then Ministry) of Labor and
Employment (DOLE) under the administrative supervision of the Secretary of Labor
and Employment (Secretary of Labor);
WHEREAS, upon the issuance of Executive Order No. 292, otherwise known as the
Revised Administrative Code of 1987 (the Administrative Code), the NLRC, by
virtue of Section 25, Chapter 6, Title VII, Book IV thereof, became an agency
attached to the DOLE for policy and program coordination and administrative
supervision;
WHEREAS, Article 213 of the Labor Code and Section 25, Chapter 6, Title VII,
Book IV of the Administrative Code were amended by Republic Act. No. 6715
approved on March 2, 1989, which provides that the NLRC shall be attached to the
DOLE for program and policy coordination only and transferred administrative
supervision over the NLRC, all its regional branches and personnel to the NLRC
Chairman;
WHEREAS, Section 16, Article III of the Constitution guarantees the right of all
persons to a speedy disposition of their cases before all judicial, quasi-judicial and
administrative bodies;
WHEREAS, the Secretary of Labor, after evaluating the NLRCs performance record
in the last five (5) years, including the rate of disposition of pending cases before it,
has informed the President that there is a need to expedite the disposition of labor
cases pending before the NLRC and all its regional and sub-regional branches or
provincial extension units and initiate potent measures to prevent graft and corruption
therein so as to reform its systems and personnel, as well as infuse the organization
with a sense of public service in consonance with the imperative of change for the
greater interest of the people;
WHEREAS, after consultations with the relevant sectors, the Secretary of Labor has
recommended that the President, pursuant to her powers under the Constitution and
existing laws, authorize the Secretary of Labor to exercise administrative supervision
over the NLRC and all its regional and sub-regional branches or provincial extension
units with the objective of improving the rate of disposition of pending cases and
institute adequate measures for the prevention of graft and corruption within the said
agency;
NOW, THEREFORE, I, GLORIA MACAPAGAL ARROYO, President of the
Republic of the Philippines, by virtue of the powers vested in me by the Constitution
and existing laws, do hereby order:
SECTION 1. Authority To Exercise Administrative Supervision. The Secretary of
Labor is hereby authorized to exercise administrative supervision over the NLRC, its
regional branches and all its personnel, including the Executive Labor Arbiters and
Labor Arbiters, with the objective of improving the rate of disposition of cases
pending before it and its regional and sub-regional branches or provincial extension
units and to institute adequate measures for the prevention of graft and corruption
within the said agency.
For this purpose, the Secretary of Labor shall, among others:
a. Generally oversee the operations of the NLRC and its regional and sub-regional
branches or provincial extension units for the purpose of ensuring that cases
pending before them are decided or resolved expeditiously;
b. Require the submission of reports as the Secretary of Labor may deem necessary;
c. Initiate measures within the agency to prevent graft and corruption, including but not
limited to, the conduct of management audits, performance evaluations and
inspections to determine compliance with established policies, standards and
guidelines;
d. To take such action as may be necessary for the proper performance of official
functions, including rectification of violations, abuses and other forms of mal-
administration; and
e. Investigate, on its own or upon complaint, matters involving disciplinary action
against any of the NLRCs personnel, including Presidential appointees, in
accordance with existing laws, rules and regulations. After completing his/her
investigation, the Secretary of Labor shall submit a report to the President on the
investigation conducted with a recommendation as to the penalty to be imposed or
other action to be taken, including referral to the Presidential Anti-Graft Commission
(PAGC), the Office of the Ombudsman or any other office, committee, commission,
agency, department, instrumentality or branch of the government for appropriate
action.
The authority conferred herein upon the Secretary of Labor shall not extend to the
power to review, reverse, revise, or modify the decisions of the NLRC in the exercise
of its quasi-judicial functions (cf. Section 38(2) (b), Chapter 7, Book IV,
Administrative Code).
SECTION 2. Report to the Secretary of Labor. The NLRC, through its Chairman,
shall submit a report to the Secretary of Labor within thirty (30) days from issuance of
this Executive Order, on the following matters:
a. Performance Report/Audit for the last five (5) years, including list of pending cases
and cases disposed of within the said period by the NLRC en banc, by Division and
by the Labor Arbiters in each of its regional and sub-regional branches or provincial
extension units;
b. Detailed Master Plan on how to liquidate its backlog of cases with clear timetables
to clean up its dockets within six (6) months from the issuance hereof;
c. Complete inventory of its assets and list of personnel indicating their present
positions and stations; and
d. Such other matters as may be required by the Secretary of Labor.
SECTION 3. Rules and Regulations. The Secretary of Labor, in consultation with
the Chairman of the NLRC, is hereby authorized to issue rules and regulations for the
effective implementation of the provisions of this Executive Order.
SECTION 4. Repealing Clause. All laws, executive issuances, rules and regulations
or parts thereof which are inconsistent with the provisions of this Executive Order are
hereby repealed, amended, or modified accordingly.
SECTION 5. Effectivity. This Executive Order shall take effect immediately upon
the completion of its publication in the Official Gazette or in a newspaper of general
circulation in the country.
City of Manila, March 10, 2003.
[6]

The constitutionality of a governmental act having been challenged, it comes as no
surprise that the first line of defense is to question the standing of petitioners and the
justiciability of herein case.
It is hornbook doctrine that the exercise of the power of judicial review requires the
concurrence of the following requisites, namely: (1) the existence of an appropriate
case; (2) an interest personal and substantial by the party raising the constitutional
question; (3) the plea that the function be exercised at the earliest opportunity; and (4)
the necessity that the constitutional question be passed upon in order to decide the
case.
[7]

As correctly pointed out by respondents, judicial review cannot be exercised in
vacuo. The function of the courts is to determine controversies between litigants and
not to give advisory opinions.
[8]
The power of judicial review can only be exercised in
connection with a bona fide case or controversy which involves the statute sought to be
reviewed.
[9]

Even with the presence of an actual case or controversy, the Court may refuse to
exercise judicial review unless the constitutional question is brought before it by a party
having the requisite standing to challenge it.
[10]
Legal standing or locus standi is defined
as a personal and substantial interest in the case such that the party has sustained or
will sustain direct injury as a result of the governmental act that is being
challenged.
[11]
For a citizen to have standing, he must establish that he has suffered
some actual or threatened injury as a result of the allegedly illegal conduct of the
government; the injury is fairly traceable to the challenged action; and the injury is likely
to be redressed by a favorable action.
[12]

Petitioners have not shown that they have sustained or are in danger of sustaining
any personal injury attributable to the enactment of E.O. No. 185. As labor unions
representing their members, it cannot be said that E.O. No. 185 will prejudice their
rights and interests considering that the scope of the authority conferred upon the
Secretary of Labor does not extend to the power to review, reverse, revise or modify the
decisions of the NLRC in the exercise of its quasi-judicial functions.
[13]
Thus, only NLRC
personnel who may find themselves the subject of the Secretary of Labors disciplinary
authority, conferred by Section 1(d) of the subject executive order, may be said to have
a direct and specific interest in raising the substantive issue herein. Moreover, and if at
all, only Congress, and not petitioners, can claim any injury
[14]
from the alleged
executive encroachment of the legislative function to amend, modify and/or repeal laws.
Neither can standing be conferred on petitioners as taxpayers since petitioners
have not established disbursement of public funds in contravention of law or the
Constitution.
[15]
A taxpayers suit is properly brought only when there is an exercise of
the spending or taxing power of Congress.
[16]
As correctly pointed out by respondents,
E.O. No. 185 does not even require for its implementation additional appropriation.
All told, if we were to follow the strict rule on locus standi, this petition should be
forthwith dismissed on that score. The rule on standing, however, is a matter of
procedure, hence, can be relaxed for nontraditional plaintiffs like ordinary citizens,
taxpayers and legislators when the public interest so requires, such as when the matter
is of transcendental importance, of overarching significance to society, or of paramount
public interest.
[17]

The question is, does the issue posed in this petition meet the exacting standard
required for this Court to take the liberal approach and recognize the standing of herein
petitioners?
The instant petition fails to persuade us.
The subject matter of E.O. No. 185 is the grant of authority by the President to the
Secretary of Labor to exercise administrative supervision over the NLRC, its regional
branches and all its personnel, including the Executive Labor Arbiters and Labor
Arbiters. Its impact, sans the challenge to its constitutionality, is thereby limited to the
departments to which it is addressed. Taking our cue from the early case of Olsen v.
Herstein and Rafferty,
[18]
the subject executive order can be considered as nothing more
or less than a command from a superior to an inferior. It creates no relation except
between the official who issued it and the officials who received it. It has for its object
simply the efficient and economical administration of the affairs of the department to
which it is issued in accordance with the law governing the subject matter.
Administrative in its nature, the subject order does not pass beyond the limits of the
departments to which it is directed, hence, it has not created any rights in third persons,
not even in the fifty thousand or so union members being represented by petitioners
who may or may not have pending cases before the labor arbiters or the NLRC.
In fine, considering that the governmental act being questioned has a limited reach,
its impact confined to corridors of the executive department, this is not one of those
exceptional occasions where the Court is justified in sweeping aside a critical
procedural requirement, rooted as it is in the constitutionally enshrined principle of
separation of powers. As succinctly put by Mr. Justice Reynato S. Puno in his
dissenting opinion in the first Kilosbayan case:
[19]

. . . [C]ourts are neither free to decide all kinds of cases dumped into their laps nor are
they free to open their doors to all parties or entities claiming a grievance. The
rationale for this constitutional requirement of locus standi is by no means trifle. It is
intended to assure a vigorous adversary presentation of the case, and, perhaps more
importantly to warrant the judiciarys overruling the determination of a coordinate,
democratically elected organ of government.
[20]
It thus goes to the very essence of
representative democracies.
. . .
A lesser but not insignificant reason for screening the standing of persons who desire
to litigate constitutional issues is economic in character. Given the sparseness of our
resources, the capacity of courts to render efficient judicial service to our people is
severely limited. For courts to indiscriminately open their doors to all types of suits
and suitors is for them to unduly overburden their dockets, and ultimately render
themselves ineffective dispensers of justice. To be sure, this is an evil that clearly
confronts our judiciary today.
All things considered, whether or not E.O. No. 185 is indeed unconstitutional will
have to await the proper party in a proper case to assail its validity.
WHEREFORE, premises considered, the instant petition dated 27 March 2003 is
hereby DISMISSED for lack of merit. No costs.
SO ORDERED.
Puno, (Acting C.J.), Panganiban, Quisumbing, Ynares-Santiago, Sandoval-
Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., Azcuna,
Tinga, and Garcia, JJ.,concur.
Davide, Jr., C.J., on leave.


G.R. No. L-63915 April 24, 1985
LORENZO M. TAADA, ABRAHAM F. SARMIENTO, and MOVEMENT OF ATTORNEYS FOR
BROTHERHOOD, INTEGRITY AND NATIONALISM, INC. [MABINI], petitioners,
vs.
HON. JUAN C. TUVERA, in his capacity as Executive Assistant to the President, HON.
JOAQUIN VENUS, in his capacity as Deputy Executive Assistant to the President ,
MELQUIADES P. DE LA CRUZ, in his capacity as Director, Malacaang Records Office, and
FLORENDO S. PABLO, in his capacity as Director, Bureau of Printing, respondents.

ESCOLIN, J .:
Invoking the people's right to be informed on matters of public concern, a right recognized in Section
6, Article IV of the 1973 Philippine Constitution,
1
as well as the principle that laws to be valid and
enforceable must be published in the Official Gazette or otherwise effectively promulgated, petitioners
seek a writ of mandamus to compel respondent public officials to publish, and/or cause the publication in
the Official Gazette of various presidential decrees, letters of instructions, general orders, proclamations,
executive orders, letter of implementation and administrative orders.
Specifically, the publication of the following presidential issuances is sought:
a] Presidential Decrees Nos. 12, 22, 37, 38, 59, 64, 103, 171, 179, 184, 197, 200,
234, 265, 286, 298, 303, 312, 324, 325, 326, 337, 355, 358, 359, 360, 361, 368, 404,
406, 415, 427, 429, 445, 447, 473, 486, 491, 503, 504, 521, 528, 551, 566, 573, 574,
594, 599, 644, 658, 661, 718, 731, 733, 793, 800, 802, 835, 836, 923, 935, 961,
1017-1030, 1050, 1060-1061, 1085, 1143, 1165, 1166, 1242, 1246, 1250, 1278,
1279, 1300, 1644, 1772, 1808, 1810, 1813-1817, 1819-1826, 1829-1840, 1842-
1847.
b] Letter of Instructions Nos.: 10, 39, 49, 72, 107, 108, 116, 130, 136, 141, 150, 153,
155, 161, 173, 180, 187, 188, 192, 193, 199, 202, 204, 205, 209, 211-213, 215-224,
226-228, 231-239, 241-245, 248, 251, 253-261, 263-269, 271-273, 275-283, 285-
289, 291, 293, 297-299, 301-303, 309, 312-315, 325, 327, 343, 346, 349, 357, 358,
362, 367, 370, 382, 385, 386, 396-397, 405, 438-440, 444- 445, 473, 486, 488, 498,
501, 399, 527, 561, 576, 587, 594, 599, 600, 602, 609, 610, 611, 612, 615, 641, 642,
665, 702, 712-713, 726, 837-839, 878-879, 881, 882, 939-940, 964,997,1149-
1178,1180-1278.
c] General Orders Nos.: 14, 52, 58, 59, 60, 62, 63, 64 & 65.
d] Proclamation Nos.: 1126, 1144, 1147, 1151, 1196, 1270, 1281, 1319-1526, 1529,
1532, 1535, 1538, 1540-1547, 1550-1558, 1561-1588, 1590-1595, 1594-1600, 1606-
1609, 1612-1628, 1630-1649, 1694-1695, 1697-1701, 1705-1723, 1731-1734, 1737-
1742, 1744, 1746-1751, 1752, 1754, 1762, 1764-1787, 1789-1795, 1797, 1800,
1802-1804, 1806-1807, 1812-1814, 1816, 1825-1826, 1829, 1831-1832, 1835-1836,
1839-1840, 1843-1844, 1846-1847, 1849, 1853-1858, 1860, 1866, 1868, 1870,
1876-1889, 1892, 1900, 1918, 1923, 1933, 1952, 1963, 1965-1966, 1968-1984,
1986-2028, 2030-2044, 2046-2145, 2147-2161, 2163-2244.
e] Executive Orders Nos.: 411, 413, 414, 427, 429-454, 457- 471, 474-492, 494-507,
509-510, 522, 524-528, 531-532, 536, 538, 543-544, 549, 551-553, 560, 563, 567-
568, 570, 574, 593, 594, 598-604, 609, 611- 647, 649-677, 679-703, 705-707, 712-
786, 788-852, 854-857.
f] Letters of Implementation Nos.: 7, 8, 9, 10, 11-22, 25-27, 39, 50, 51, 59, 76, 80-81,
92, 94, 95, 107, 120, 122, 123.
g] Administrative Orders Nos.: 347, 348, 352-354, 360- 378, 380-433, 436-439.
The respondents, through the Solicitor General, would have this case dismissed outright on the
ground that petitioners have no legal personality or standing to bring the instant petition. The view is
submitted that in the absence of any showing that petitioners are personally and directly affected or
prejudiced by the alleged non-publication of the presidential issuances in question
2
said petitioners
are without the requisite legal personality to institute this mandamus proceeding, they are not being
"aggrieved parties" within the meaning of Section 3, Rule 65 of the Rules of Court, which we quote:
SEC. 3. Petition for Mandamus.When any tribunal, corporation, board or person
unlawfully neglects the performance of an act which the law specifically enjoins as a
duty resulting from an office, trust, or station, or unlawfully excludes another from the
use a rd enjoyment of a right or office to which such other is entitled, and there is no
other plain, speedy and adequate remedy in the ordinary course of law, the person
aggrieved thereby may file a verified petition in the proper court alleging the facts
with certainty and praying that judgment be rendered commanding the defendant,
immediately or at some other specified time, to do the act required to be done to
Protect the rights of the petitioner, and to pay the damages sustained by the
petitioner by reason of the wrongful acts of the defendant.
Upon the other hand, petitioners maintain that since the subject of the petition concerns a public
right and its object is to compel the performance of a public duty, they need not show any specific
interest for their petition to be given due course.
The issue posed is not one of first impression. As early as the 1910 case of Severino vs. Governor
General,
3
this Court held that while the general rule is that "a writ of mandamus would be granted to a
private individual only in those cases where he has some private or particular interest to be subserved, or
some particular right to be protected, independent of that which he holds with the public at large," and "it
is for the public officers exclusively to apply for the writ when public rights are to be subserved [Mithchell
vs. Boardmen, 79 M.e., 469]," nevertheless, "when the question is one of public right and the object of the
mandamus is to procure the enforcement of a public duty, the people are regarded as the real party in
interest and the relator at whose instigation the proceedings are instituted need not show that he has any
legal or special interest in the result, it being sufficient to show that he is a citizen and as such interested
in the execution of the laws [High, Extraordinary Legal Remedies, 3rd ed., sec. 431].
Thus, in said case, this Court recognized the relator Lope Severino, a private individual, as a proper
party to the mandamus proceedings brought to compel the Governor General to call a special
election for the position of municipal president in the town of Silay, Negros Occidental. Speaking for
this Court, Mr. Justice Grant T. Trent said:
We are therefore of the opinion that the weight of authority supports the proposition
that the relator is a proper party to proceedings of this character when a public right
is sought to be enforced. If the general rule in America were otherwise, we think that
it would not be applicable to the case at bar for the reason 'that it is always
dangerous to apply a general rule to a particular case without keeping in mind the
reason for the rule, because, if under the particular circumstances the reason for the
rule does not exist, the rule itself is not applicable and reliance upon the rule may
well lead to error'
No reason exists in the case at bar for applying the general rule insisted upon by
counsel for the respondent. The circumstances which surround this case are different
from those in the United States, inasmuch as if the relator is not a proper party to
these proceedings no other person could be, as we have seen that it is not the duty
of the law officer of the Government to appear and represent the people in cases of
this character.
The reasons given by the Court in recognizing a private citizen's legal personality in the
aforementioned case apply squarely to the present petition. Clearly, the right sought to be enforced
by petitioners herein is a public right recognized by no less than the fundamental law of the land. If
petitioners were not allowed to institute this proceeding, it would indeed be difficult to conceive of
any other person to initiate the same, considering that the Solicitor General, the government officer
generally empowered to represent the people, has entered his appearance for respondents in this
case.
Respondents further contend that publication in the Official Gazette is not a sine qua non
requirement for the effectivity of laws where the laws themselves provide for their own effectivity
dates. It is thus submitted that since the presidential issuances in question contain special provisions
as to the date they are to take effect, publication in the Official Gazette is not indispensable for their
effectivity. The point stressed is anchored on Article 2 of the Civil Code:
Art. 2. Laws shall take effect after fifteen days following the completion of their
publication in the Official Gazette, unless it is otherwise provided, ...
The interpretation given by respondent is in accord with this Court's construction of said article. In a
long line of decisions,
4
this Court has ruled that publication in the Official Gazette is necessary in those
cases where the legislation itself does not provide for its effectivity date-for then the date of publication is
material for determining its date of effectivity, which is the fifteenth day following its publication-but not
when the law itself provides for the date when it goes into effect.
Respondents' argument, however, is logically correct only insofar as it equates the effectivity of laws
with the fact of publication. Considered in the light of other statutes applicable to the issue at hand,
the conclusion is easily reached that said Article 2 does not preclude the requirement of publication
in the Official Gazette, even if the law itself provides for the date of its effectivity. Thus, Section 1 of
Commonwealth Act 638 provides as follows:
Section 1. There shall be published in the Official Gazette [1] all important legisiative
acts and resolutions of a public nature of the, Congress of the Philippines; [2] all
executive and administrative orders and proclamations, except such as have no
general applicability; [3] decisions or abstracts of decisions of the Supreme Court
and the Court of Appeals as may be deemed by said courts of sufficient importance
to be so published; [4] such documents or classes of documents as may be required
so to be published by law; and [5] such documents or classes of documents as the
President of the Philippines shall determine from time to time to have general
applicability and legal effect, or which he may authorize so to be published. ...
The clear object of the above-quoted provision is to give the general public adequate notice of the
various laws which are to regulate their actions and conduct as citizens. Without such notice and
publication, there would be no basis for the application of the maxim "ignorantia legis non excusat." It
would be the height of injustice to punish or otherwise burden a citizen for the transgression of a law
of which he had no notice whatsoever, not even a constructive one.
Perhaps at no time since the establishment of the Philippine Republic has the publication of laws
taken so vital significance that at this time when the people have bestowed upon the President a
power heretofore enjoyed solely by the legislature. While the people are kept abreast by the mass
media of the debates and deliberations in the Batasan Pambansaand for the diligent ones, ready
access to the legislative recordsno such publicity accompanies the law-making process of the
President. Thus, without publication, the people have no means of knowing what presidential
decrees have actually been promulgated, much less a definite way of informing themselves of the
specific contents and texts of such decrees. As the Supreme Court of Spain ruled: "Bajo la
denominacion generica de leyes, se comprenden tambien los reglamentos, Reales decretos,
Instrucciones, Circulares y Reales ordines dictadas de conformidad con las mismas por el Gobierno
en uso de su potestad.
5

The very first clause of Section I of Commonwealth Act 638 reads: "There shall be published in the
Official Gazette ... ." The word "shall" used therein imposes upon respondent officials an imperative
duty. That duty must be enforced if the Constitutional right of the people to be informed on matters of
public concern is to be given substance and reality. The law itself makes a list of what should be
published in the Official Gazette. Such listing, to our mind, leaves respondents with no discretion
whatsoever as to what must be included or excluded from such publication.
The publication of all presidential issuances "of a public nature" or "of general applicability" is
mandated by law. Obviously, presidential decrees that provide for fines, forfeitures or penalties for
their violation or otherwise impose a burden or. the people, such as tax and revenue measures, fall
within this category. Other presidential issuances which apply only to particular persons or class of
persons such as administrative and executive orders need not be published on the assumption that
they have been circularized to all concerned.
6

It is needless to add that the publication of presidential issuances "of a public nature" or "of general
applicability" is a requirement of due process. It is a rule of law that before a person may be bound
by law, he must first be officially and specifically informed of its contents. As Justice Claudio
Teehankee said in Peralta vs. COMELEC
7
:
In a time of proliferating decrees, orders and letters of instructions which all form part
of the law of the land, the requirement of due process and the Rule of Law demand
that the Official Gazette as the official government repository promulgate and publish
the texts of all such decrees, orders and instructions so that the people may know
where to obtain their official and specific contents.
The Court therefore declares that presidential issuances of general application, which have not been
published, shall have no force and effect. Some members of the Court, quite apprehensive about the
possible unsettling effect this decision might have on acts done in reliance of the validity of those
presidential decrees which were published only during the pendency of this petition, have put the
question as to whether the Court's declaration of invalidity apply to P.D.s which had been enforced
or implemented prior to their publication. The answer is all too familiar. In similar situations in the
past this Court had taken the pragmatic and realistic course set forth in Chicot County Drainage
District vs. Baxter Bank
8
to wit:
The courts below have proceeded on the theory that the Act of Congress, having
been found to be unconstitutional, was not a law; that it was inoperative, conferring
no rights and imposing no duties, and hence affording no basis for the challenged
decree. Norton v. Shelby County, 118 U.S. 425, 442; Chicago, 1. & L. Ry. Co. v.
Hackett, 228 U.S. 559, 566. It is quite clear, however, that such broad statements as
to the effect of a determination of unconstitutionality must be taken with
qualifications. The actual existence of a statute, prior to such a determination, is an
operative fact and may have consequences which cannot justly be ignored. The past
cannot always be erased by a new judicial declaration. The effect of the subsequent
ruling as to invalidity may have to be considered in various aspects-with respect to
particular conduct, private and official. Questions of rights claimed to have become
vested, of status, of prior determinations deemed to have finality and acted upon
accordingly, of public policy in the light of the nature both of the statute and of its
previous application, demand examination. These questions are among the most
difficult of those which have engaged the attention of courts, state and federal and it
is manifest from numerous decisions that an all-inclusive statement of a principle of
absolute retroactive invalidity cannot be justified.
Consistently with the above principle, this Court in Rutter vs. Esteban
9
sustained the right of a party
under the Moratorium Law, albeit said right had accrued in his favor before said law was declared
unconstitutional by this Court.
Similarly, the implementation/enforcement of presidential decrees prior to their publication in the
Official Gazette is "an operative fact which may have consequences which cannot be justly ignored.
The past cannot always be erased by a new judicial declaration ... that an all-inclusive statement of a
principle of absolute retroactive invalidity cannot be justified."
From the report submitted to the Court by the Clerk of Court, it appears that of the presidential
decrees sought by petitioners to be published in the Official Gazette, only Presidential Decrees Nos.
1019 to 1030, inclusive, 1278, and 1937 to 1939, inclusive, have not been so published.
10
Neither
the subject matters nor the texts of these PDs can be ascertained since no copies thereof are available.
But whatever their subject matter may be, it is undisputed that none of these unpublished PDs has ever
been implemented or enforced by the government. In Pesigan vs. Angeles,
11
the Court, through Justice
Ramon Aquino, ruled that "publication is necessary to apprise the public of the contents of [penal]
regulations and make the said penalties binding on the persons affected thereby. " The cogency of this
holding is apparently recognized by respondent officials considering the manifestation in their comment
that "the government, as a matter of policy, refrains from prosecuting violations of criminal laws until the
same shall have been published in the Official Gazette or in some other publication, even though some
criminal laws provide that they shall take effect immediately.
WHEREFORE, the Court hereby orders respondents to publish in the Official Gazette all
unpublished presidential issuances which are of general application, and unless so published, they
shall have no binding force and effect.
SO ORDERED.
Relova, J., concurs.
Aquino, J., took no part.
Concepcion, Jr., J., is on leave.


Separate Opinions

FERNANDO, C.J ., concurring (with qualification):
There is on the whole acceptance on my part of the views expressed in the ably written opinion of
Justice Escolin. I am unable, however, to concur insofar as it would unqualifiedly impose the
requirement of publication in the Official Gazette for unpublished "presidential issuances" to have
binding force and effect.
I shall explain why.
1. It is of course true that without the requisite publication, a due process question would arise if
made to apply adversely to a party who is not even aware of the existence of any legislative or
executive act having the force and effect of law. My point is that such publication required need not
be confined to the Official Gazette. From the pragmatic standpoint, there is an advantage to be
gained. It conduces to certainty. That is too be admitted. It does not follow, however, that failure to
do so would in all cases and under all circumstances result in a statute, presidential decree or any
other executive act of the same category being bereft of any binding force and effect. To so hold
would, for me, raise a constitutional question. Such a pronouncement would lend itself to the
interpretation that such a legislative or presidential act is bereft of the attribute of effectivity unless
published in the Official Gazette. There is no such requirement in the Constitution as Justice Plana
so aptly pointed out. It is true that what is decided now applies only to past "presidential issuances".
Nonetheless, this clarification is, to my mind, needed to avoid any possible misconception as to what
is required for any statute or presidential act to be impressed with binding force or effectivity.
2. It is quite understandable then why I concur in the separate opinion of Justice Plana. Its first
paragraph sets forth what to me is the constitutional doctrine applicable to this case. Thus: "The
Philippine Constitution does not require the publication of laws as a prerequisite for their effectivity,
unlike some Constitutions elsewhere. It may be said though that the guarantee of due process
requires notice of laws to affected Parties before they can be bound thereby; but such notice is not
necessarily by publication in the Official Gazette. The due process clause is not that precise.
1
I am
likewise in agreement with its closing paragraph: "In fine, I concur in the majority decision to the extent
that it requires notice before laws become effective, for no person should be bound by a law without
notice. This is elementary fairness. However, I beg to disagree insofar as it holds that such notice shall be
by publication in the Official Gazette.
2

3. It suffices, as was stated by Judge Learned Hand, that law as the command of the government
"must be ascertainable in some form if it is to be enforced at all.
3
It would indeed be to reduce it to the
level of mere futility, as pointed out by Justice Cardozo, "if it is unknown and unknowable.
4
Publication, to
repeat, is thus essential. What I am not prepared to subscribe to is the doctrine that it must be in the
Official Gazette. To be sure once published therein there is the ascertainable mode of determining the
exact date of its effectivity. Still for me that does not dispose of the question of what is the jural effect of
past presidential decrees or executive acts not so published. For prior thereto, it could be that parties
aware of their existence could have conducted themselves in accordance with their provisions. If no legal
consequences could attach due to lack of publication in the Official Gazette, then serious problems could
arise. Previous transactions based on such "Presidential Issuances" could be open to question. Matters
deemed settled could still be inquired into. I am not prepared to hold that such an effect is contemplated
by our decision. Where such presidential decree or executive act is made the basis of a criminal
prosecution, then, of course, its ex post facto character becomes evident.
5
In civil cases though,
retroactivity as such is not conclusive on the due process aspect. There must still be a showing of
arbitrariness. Moreover, where the challenged presidential decree or executive act was issued under the
police power, the non-impairment clause of the Constitution may not always be successfully invoked.
There must still be that process of balancing to determine whether or not it could in such a case be
tainted by infirmity.
6
In traditional terminology, there could arise then a question of unconstitutional
application. That is as far as it goes.
4. Let me make therefore that my qualified concurrence goes no further than to affirm that
publication is essential to the effectivity of a legislative or executive act of a general application. I am
not in agreement with the view that such publication must be in the Official Gazette. The Civil Code
itself in its Article 2 expressly recognizes that the rule as to laws taking effect after fifteen days
following the completion of their publication in the Official Gazette is subject to this exception,
"unless it is otherwise provided." Moreover, the Civil Code is itself only a legislative enactment,
Republic Act No. 386. It does not and cannot have the juridical force of a constitutional command. A
later legislative or executive act which has the force and effect of law can legally provide for a
different rule.
5. Nor can I agree with the rather sweeping conclusion in the opinion of Justice Escolin that
presidential decrees and executive acts not thus previously published in the Official Gazette would
be devoid of any legal character. That would be, in my opinion, to go too far. It may be fraught, as
earlier noted, with undesirable consequences. I find myself therefore unable to yield assent to such a
pronouncement.
I am authorized to state that Justices Makasiar, Abad Santos, Cuevas, and Alampay concur in this
separate opinion.
Makasiar, Abad Santos, Cuevas and Alampay, JJ., concur.

TEEHANKEE, J ., concurring:
I concur with the main opinion of Mr. Justice Escolin and the concurring opinion of Mme. Justice
Herrera. The Rule of Law connotes a body of norms and laws published and ascertainable and of
equal application to all similarly circumstances and not subject to arbitrary change but only under
certain set procedures. The Court has consistently stressed that "it is an elementary rule of fair play
and justice that a reasonable opportunity to be informed must be afforded to the people who are
commanded to obey before they can be punished for its violation,
1
citing the settled principle based on
due process enunciated in earlier cases that "before the public is bound by its contents, especially its
penal provisions, a law, regulation or circular must first be published and the people officially and
specially informed of said contents and its penalties.
Without official publication in the Official Gazette as required by Article 2 of the Civil Code and the
Revised Administrative Code, there would be no basis nor justification for the corollary rule of Article
3 of the Civil Code (based on constructive notice that the provisions of the law are ascertainable
from the public and official repository where they are duly published) that "Ignorance of the law
excuses no one from compliance therewith.
Respondents' contention based on a misreading of Article 2 of the Civil Code that "only laws which
are silent as to their effectivity [date] need be published in the Official Gazette for their effectivity" is
manifestly untenable. The plain text and meaning of the Civil Code is that "laws shall take effect after
fifteen days following the completion of their publication in the Official Gazette, unless it is otherwise
provided, " i.e. a different effectivity date is provided by the law itself. This proviso perforce refers to
a law that has been duly published pursuant to the basic constitutional requirements of due process.
The best example of this is the Civil Code itself: the same Article 2 provides otherwise that it "shall
take effect [only] one year [not 15 days] after such publication.
2
To sustain respondents' misreading
that "most laws or decrees specify the date of their effectivity and for this reason, publication in the Official
Gazette is not necessary for their effectivity
3
would be to nullify and render nugatory the Civil Code's
indispensable and essential requirement of prior publication in the Official Gazette by the simple
expedient of providing for immediate effectivity or an earlier effectivity date in the law itself before the
completion of 15 days following its publication which is the period generally fixed by the Civil Code for its
proper dissemination.

MELENCIO-HERRERA, J ., concurring:
I agree. There cannot be any question but that even if a decree provides for a date of effectivity, it
has to be published. What I would like to state in connection with that proposition is that when a date
of effectivity is mentioned in the decree but the decree becomes effective only fifteen (15) days after
its publication in the Official Gazette, it will not mean that the decree can have retroactive effect to
the date of effectivity mentioned in the decree itself. There should be no retroactivity if the
retroactivity will run counter to constitutional rights or shall destroy vested rights.

PLANA, J ., concurring (with qualification):
The Philippine Constitution does not require the publication of laws as a prerequisite for their
effectivity, unlike some Constitutions elsewhere. * It may be said though that the guarantee of due process requires
notice of laws to affected parties before they can be bound thereby; but such notice is not necessarily by publication in the Official Gazette.
The due process clause is not that precise. Neither is the publication of laws in theOfficial Gazette required by any statute as a prerequisite
for their effectivity, if said laws already provide for their effectivity date.
Article 2 of the Civil Code provides that "laws shall take effect after fifteen days following the
completion of their publication in the Official Gazette, unless it is otherwise provided " Two things
may be said of this provision: Firstly, it obviously does not apply to a law with a built-in provision as
to when it will take effect. Secondly, it clearly recognizes that each law may provide not only a
different period for reckoning its effectivity date but also a different mode of notice. Thus, a law may
prescribe that it shall be published elsewhere than in the Official Gazette.
Commonwealth Act No. 638, in my opinion, does not support the proposition that for their
effectivity, laws must be published in the Official Gazette. The said law is simply "An Act to Provide
for the Uniform Publication and Distribution of the Official Gazette." Conformably therewith, it
authorizes the publication of the Official Gazette, determines its frequency, provides for its sale and
distribution, and defines the authority of the Director of Printing in relation thereto. It also enumerates
what shall be published in the Official Gazette, among them, "important legislative acts and
resolutions of a public nature of the Congress of the Philippines" and "all executive and
administrative orders and proclamations, except such as have no general applicability." It is
noteworthy that not all legislative acts are required to be published in the Official Gazette but only
"important" ones "of a public nature." Moreover, the said law does not provide that publication in the
Official Gazette is essential for the effectivity of laws. This is as it should be, for all statutes are equal
and stand on the same footing. A law, especially an earlier one of general application such as
Commonwealth Act No. 638, cannot nullify or restrict the operation of a subsequent statute that has
a provision of its own as to when and how it will take effect. Only a higher law, which is the
Constitution, can assume that role.
In fine, I concur in the majority decision to the extent that it requires notice before laws become
effective, for no person should be bound by a law without notice. This is elementary fairness.
However, I beg to disagree insofar as it holds that such notice shall be by publication in the Official
Gazette.
Cuevas and Alampay, JJ., concur.

GUTIERREZ, Jr., J ., concurring:
I concur insofar as publication is necessary but reserve my vote as to the necessity of such
publication being in the Official Gazette.

DE LA FUENTE, J ., concurring:
I concur insofar as the opinion declares the unpublished decrees and issuances of a public nature or
general applicability ineffective, until due publication thereof.



Separate Opinions
FERNANDO, C.J ., concurring (with qualification):
There is on the whole acceptance on my part of the views expressed in the ably written opinion of
Justice Escolin. I am unable, however, to concur insofar as it would unqualifiedly impose the
requirement of publication in the Official Gazette for unpublished "presidential issuances" to have
binding force and effect.
I shall explain why.
1. It is of course true that without the requisite publication, a due process question would arise if
made to apply adversely to a party who is not even aware of the existence of any legislative or
executive act having the force and effect of law. My point is that such publication required need not
be confined to the Official Gazette. From the pragmatic standpoint, there is an advantage to be
gained. It conduces to certainty. That is too be admitted. It does not follow, however, that failure to
do so would in all cases and under all circumstances result in a statute, presidential decree or any
other executive act of the same category being bereft of any binding force and effect. To so hold
would, for me, raise a constitutional question. Such a pronouncement would lend itself to the
interpretation that such a legislative or presidential act is bereft of the attribute of effectivity unless
published in the Official Gazette. There is no such requirement in the Constitution as Justice Plana
so aptly pointed out. It is true that what is decided now applies only to past "presidential issuances".
Nonetheless, this clarification is, to my mind, needed to avoid any possible misconception as to what
is required for any statute or presidential act to be impressed with binding force or effectivity.
2. It is quite understandable then why I concur in the separate opinion of Justice Plana. Its first
paragraph sets forth what to me is the constitutional doctrine applicable to this case. Thus: "The
Philippine Constitution does not require the publication of laws as a prerequisite for their effectivity,
unlike some Constitutions elsewhere. It may be said though that the guarantee of due process
requires notice of laws to affected Parties before they can be bound thereby; but such notice is not
necessarily by publication in the Official Gazette. The due process clause is not that precise.
1
I am
likewise in agreement with its closing paragraph: "In fine, I concur in the majority decision to the extent
that it requires notice before laws become effective, for no person should be bound by a law without
notice. This is elementary fairness. However, I beg to disagree insofar as it holds that such notice shall be
by publication in the Official Gazette.
2

3. It suffices, as was stated by Judge Learned Hand, that law as the command of the government
"must be ascertainable in some form if it is to be enforced at all.
3
It would indeed be to reduce it to the
level of mere futility, as pointed out by Justice Cardozo, "if it is unknown and unknowable.
4
Publication, to
repeat, is thus essential. What I am not prepared to subscribe to is the doctrine that it must be in the
Official Gazette. To be sure once published therein there is the ascertainable mode of determining the
exact date of its effectivity. Still for me that does not dispose of the question of what is the jural effect of
past presidential decrees or executive acts not so published. For prior thereto, it could be that parties
aware of their existence could have conducted themselves in accordance with their provisions. If no legal
consequences could attach due to lack of publication in the Official Gazette, then serious problems could
arise. Previous transactions based on such "Presidential Issuances" could be open to question. Matters
deemed settled could still be inquired into. I am not prepared to hold that such an effect is contemplated
by our decision. Where such presidential decree or executive act is made the basis of a criminal
prosecution, then, of course, its ex post facto character becomes evident.
5
In civil cases though,
retroactivity as such is not conclusive on the due process aspect. There must still be a showing of
arbitrariness. Moreover, where the challenged presidential decree or executive act was issued under the
police power, the non-impairment clause of the Constitution may not always be successfully invoked.
There must still be that process of balancing to determine whether or not it could in such a case be
tainted by infirmity.
6
In traditional terminology, there could arise then a question of unconstitutional
application. That is as far as it goes.
4. Let me make therefore that my qualified concurrence goes no further than to affirm that
publication is essential to the effectivity of a legislative or executive act of a general application. I am
not in agreement with the view that such publication must be in the Official Gazette. The Civil Code
itself in its Article 2 expressly recognizes that the rule as to laws taking effect after fifteen days
following the completion of their publication in the Official Gazette is subject to this exception,
"unless it is otherwise provided." Moreover, the Civil Code is itself only a legislative enactment,
Republic Act No. 386. It does not and cannot have the juridical force of a constitutional command. A
later legislative or executive act which has the force and effect of law can legally provide for a
different rule.
5. Nor can I agree with the rather sweeping conclusion in the opinion of Justice Escolin that
presidential decrees and executive acts not thus previously published in the Official Gazette would
be devoid of any legal character. That would be, in my opinion, to go too far. It may be fraught, as
earlier noted, with undesirable consequences. I find myself therefore unable to yield assent to such a
pronouncement.
I am authorized to state that Justices Makasiar, Abad Santos, Cuevas, and Alampay concur in this
separate opinion.
Makasiar, Abad Santos, Cuevas and Alampay, JJ., concur.

TEEHANKEE, J ., concurring:
I concur with the main opinion of Mr. Justice Escolin and the concurring opinion of Mme. Justice
Herrera. The Rule of Law connotes a body of norms and laws published and ascertainable and of
equal application to all similarly circumstances and not subject to arbitrary change but only under
certain set procedures. The Court has consistently stressed that "it is an elementary rule of fair play
and justice that a reasonable opportunity to be informed must be afforded to the people who are
commanded to obey before they can be punished for its violation,
1
citing the settled principle based on
due process enunciated in earlier cases that "before the public is bound by its contents, especially its
penal provisions, a law, regulation or circular must first be published and the people officially and
specially informed of said contents and its penalties.
Without official publication in the Official Gazette as required by Article 2 of the Civil Code and the
Revised Administrative Code, there would be no basis nor justification for the corollary rule of Article
3 of the Civil Code (based on constructive notice that the provisions of the law are ascertainable
from the public and official repository where they are duly published) that "Ignorance of the law
excuses no one from compliance therewith.
Respondents' contention based on a misreading of Article 2 of the Civil Code that "only laws which
are silent as to their effectivity [date] need be published in the Official Gazette for their effectivity" is
manifestly untenable. The plain text and meaning of the Civil Code is that "laws shall take effect after
fifteen days following the completion of their publication in the Official Gazette, unless it is otherwise
provided, " i.e. a different effectivity date is provided by the law itself. This proviso perforce refers to
a law that has been duly published pursuant to the basic constitutional requirements of due process.
The best example of this is the Civil Code itself: the same Article 2 provides otherwise that it "shall
take effect [only] one year [not 15 days] after such publication.
2
To sustain respondents' misreading
that "most laws or decrees specify the date of their effectivity and for this reason, publication in the Official
Gazette is not necessary for their effectivity
3
would be to nullify and render nugatory the Civil Code's
indispensable and essential requirement of prior publication in the Official Gazette by the simple
expedient of providing for immediate effectivity or an earlier effectivity date in the law itself before the
completion of 15 days following its publication which is the period generally fixed by the Civil Code for its
proper dissemination.

MELENCIO-HERRERA, J ., concurring:
I agree. There cannot be any question but that even if a decree provides for a date of effectivity, it
has to be published. What I would like to state in connection with that proposition is that when a date
of effectivity is mentioned in the decree but the decree becomes effective only fifteen (15) days after
its publication in the Official Gazette, it will not mean that the decree can have retroactive effect to
the date of effectivity mentioned in the decree itself. There should be no retroactivity if the
retroactivity will run counter to constitutional rights or shall destroy vested rights.

PLANA, J ., concurring (with qualification):
The Philippine Constitution does not require the publication of laws as a prerequisite for their
effectivity, unlike some Constitutions elsewhere. * It may be said though that the guarantee of due process requires
notice of laws to affected parties before they can be bound thereby; but such notice is not necessarily by publication in the Official Gazette.
The due process clause is not that precise. Neither is the publication of laws in theOfficial Gazette required by any statute as a prerequisite
for their effectivity, if said laws already provide for their effectivity date.
Article 2 of the Civil Code provides that "laws shall take effect after fifteen days following the
completion of their publication in the Official Gazette, unless it is otherwise provided " Two things
may be said of this provision: Firstly, it obviously does not apply to a law with a built-in provision as
to when it will take effect. Secondly, it clearly recognizes that each law may provide not only a
different period for reckoning its effectivity date but also a different mode of notice. Thus, a law may
prescribe that it shall be published elsewhere than in the Official Gazette.
Commonwealth Act No. 638, in my opinion, does not support the proposition that for their
effectivity, laws must be published in the Official Gazette. The said law is simply "An Act to Provide
for the Uniform Publication and Distribution of the Official Gazette." Conformably therewith, it
authorizes the publication of the Official Gazette, determines its frequency, provides for its sale and
distribution, and defines the authority of the Director of Printing in relation thereto. It also enumerates
what shall be published in the Official Gazette, among them, "important legislative acts and
resolutions of a public nature of the Congress of the Philippines" and "all executive and
administrative orders and proclamations, except such as have no general applicability." It is
noteworthy that not all legislative acts are required to be published in the Official Gazette but only
"important" ones "of a public nature." Moreover, the said law does not provide that publication in the
Official Gazette is essential for the effectivity of laws. This is as it should be, for all statutes are equal
and stand on the same footing. A law, especially an earlier one of general application such as
Commonwealth Act No. 638, cannot nullify or restrict the operation of a subsequent statute that has
a provision of its own as to when and how it will take effect. Only a higher law, which is the
Constitution, can assume that role.
In fine, I concur in the majority decision to the extent that it requires notice before laws become
effective, for no person should be bound by a law without notice. This is elementary fairness.
However, I beg to disagree insofar as it holds that such notice shall be by publication in the Official
Gazette.
Cuevas and Alampay, JJ., concur.

Manila
EN BANC
G.R. No. L-63915 April 24, 1985
LORENZO M. TAADA, ABRAHAM F. SARMIENTO, and MOVEMENT OF ATTORNEYS FOR
BROTHERHOOD, INTEGRITY AND NATIONALISM, INC. [MABINI], petitioners,
vs.
HON. JUAN C. TUVERA, in his capacity as Executive Assistant to the President, HON.
JOAQUIN VENUS, in his capacity as Deputy Executive Assistant to the President ,
MELQUIADES P. DE LA CRUZ, in his capacity as Director, Malacaang Records Office, and
FLORENDO S. PABLO, in his capacity as Director, Bureau of Printing, respondents.

ESCOLIN, J .:
Invoking the people's right to be informed on matters of public concern, a right recognized in Section
6, Article IV of the 1973 Philippine Constitution,
1
as well as the principle that laws to be valid and
enforceable must be published in the Official Gazette or otherwise effectively promulgated, petitioners
seek a writ of mandamus to compel respondent public officials to publish, and/or cause the publication in
the Official Gazette of various presidential decrees, letters of instructions, general orders, proclamations,
executive orders, letter of implementation and administrative orders.
Specifically, the publication of the following presidential issuances is sought:
a] Presidential Decrees Nos. 12, 22, 37, 38, 59, 64, 103, 171, 179, 184, 197, 200,
234, 265, 286, 298, 303, 312, 324, 325, 326, 337, 355, 358, 359, 360, 361, 368, 404,
406, 415, 427, 429, 445, 447, 473, 486, 491, 503, 504, 521, 528, 551, 566, 573, 574,
594, 599, 644, 658, 661, 718, 731, 733, 793, 800, 802, 835, 836, 923, 935, 961,
1017-1030, 1050, 1060-1061, 1085, 1143, 1165, 1166, 1242, 1246, 1250, 1278,
1279, 1300, 1644, 1772, 1808, 1810, 1813-1817, 1819-1826, 1829-1840, 1842-
1847.
b] Letter of Instructions Nos.: 10, 39, 49, 72, 107, 108, 116, 130, 136, 141, 150, 153,
155, 161, 173, 180, 187, 188, 192, 193, 199, 202, 204, 205, 209, 211-213, 215-224,
226-228, 231-239, 241-245, 248, 251, 253-261, 263-269, 271-273, 275-283, 285-
289, 291, 293, 297-299, 301-303, 309, 312-315, 325, 327, 343, 346, 349, 357, 358,
362, 367, 370, 382, 385, 386, 396-397, 405, 438-440, 444- 445, 473, 486, 488, 498,
501, 399, 527, 561, 576, 587, 594, 599, 600, 602, 609, 610, 611, 612, 615, 641, 642,
665, 702, 712-713, 726, 837-839, 878-879, 881, 882, 939-940, 964,997,1149-
1178,1180-1278.
c] General Orders Nos.: 14, 52, 58, 59, 60, 62, 63, 64 & 65.
d] Proclamation Nos.: 1126, 1144, 1147, 1151, 1196, 1270, 1281, 1319-1526, 1529,
1532, 1535, 1538, 1540-1547, 1550-1558, 1561-1588, 1590-1595, 1594-1600, 1606-
1609, 1612-1628, 1630-1649, 1694-1695, 1697-1701, 1705-1723, 1731-1734, 1737-
1742, 1744, 1746-1751, 1752, 1754, 1762, 1764-1787, 1789-1795, 1797, 1800,
1802-1804, 1806-1807, 1812-1814, 1816, 1825-1826, 1829, 1831-1832, 1835-1836,
1839-1840, 1843-1844, 1846-1847, 1849, 1853-1858, 1860, 1866, 1868, 1870,
1876-1889, 1892, 1900, 1918, 1923, 1933, 1952, 1963, 1965-1966, 1968-1984,
1986-2028, 2030-2044, 2046-2145, 2147-2161, 2163-2244.
e] Executive Orders Nos.: 411, 413, 414, 427, 429-454, 457- 471, 474-492, 494-507,
509-510, 522, 524-528, 531-532, 536, 538, 543-544, 549, 551-553, 560, 563, 567-
568, 570, 574, 593, 594, 598-604, 609, 611- 647, 649-677, 679-703, 705-707, 712-
786, 788-852, 854-857.
f] Letters of Implementation Nos.: 7, 8, 9, 10, 11-22, 25-27, 39, 50, 51, 59, 76, 80-81,
92, 94, 95, 107, 120, 122, 123.
g] Administrative Orders Nos.: 347, 348, 352-354, 360- 378, 380-433, 436-439.
The respondents, through the Solicitor General, would have this case dismissed outright on the
ground that petitioners have no legal personality or standing to bring the instant petition. The view is
submitted that in the absence of any showing that petitioners are personally and directly affected or
prejudiced by the alleged non-publication of the presidential issuances in question
2
said petitioners
are without the requisite legal personality to institute this mandamus proceeding, they are not being
"aggrieved parties" within the meaning of Section 3, Rule 65 of the Rules of Court, which we quote:
SEC. 3. Petition for Mandamus.When any tribunal, corporation, board or person
unlawfully neglects the performance of an act which the law specifically enjoins as a
duty resulting from an office, trust, or station, or unlawfully excludes another from the
use a rd enjoyment of a right or office to which such other is entitled, and there is no
other plain, speedy and adequate remedy in the ordinary course of law, the person
aggrieved thereby may file a verified petition in the proper court alleging the facts
with certainty and praying that judgment be rendered commanding the defendant,
immediately or at some other specified time, to do the act required to be done to
Protect the rights of the petitioner, and to pay the damages sustained by the
petitioner by reason of the wrongful acts of the defendant.
Upon the other hand, petitioners maintain that since the subject of the petition concerns a public
right and its object is to compel the performance of a public duty, they need not show any specific
interest for their petition to be given due course.
The issue posed is not one of first impression. As early as the 1910 case of Severino vs. Governor
General,
3
this Court held that while the general rule is that "a writ of mandamus would be granted to a
private individual only in those cases where he has some private or particular interest to be subserved, or
some particular right to be protected, independent of that which he holds with the public at large," and "it
is for the public officers exclusively to apply for the writ when public rights are to be subserved [Mithchell
vs. Boardmen, 79 M.e., 469]," nevertheless, "when the question is one of public right and the object of the
mandamus is to procure the enforcement of a public duty, the people are regarded as the real party in
interest and the relator at whose instigation the proceedings are instituted need not show that he has any
legal or special interest in the result, it being sufficient to show that he is a citizen and as such interested
in the execution of the laws [High, Extraordinary Legal Remedies, 3rd ed., sec. 431].
Thus, in said case, this Court recognized the relator Lope Severino, a private individual, as a proper
party to the mandamus proceedings brought to compel the Governor General to call a special
election for the position of municipal president in the town of Silay, Negros Occidental. Speaking for
this Court, Mr. Justice Grant T. Trent said:
We are therefore of the opinion that the weight of authority supports the proposition
that the relator is a proper party to proceedings of this character when a public right
is sought to be enforced. If the general rule in America were otherwise, we think that
it would not be applicable to the case at bar for the reason 'that it is always
dangerous to apply a general rule to a particular case without keeping in mind the
reason for the rule, because, if under the particular circumstances the reason for the
rule does not exist, the rule itself is not applicable and reliance upon the rule may
well lead to error'
No reason exists in the case at bar for applying the general rule insisted upon by
counsel for the respondent. The circumstances which surround this case are different
from those in the United States, inasmuch as if the relator is not a proper party to
these proceedings no other person could be, as we have seen that it is not the duty
of the law officer of the Government to appear and represent the people in cases of
this character.
The reasons given by the Court in recognizing a private citizen's legal personality in the
aforementioned case apply squarely to the present petition. Clearly, the right sought to be enforced
by petitioners herein is a public right recognized by no less than the fundamental law of the land. If
petitioners were not allowed to institute this proceeding, it would indeed be difficult to conceive of
any other person to initiate the same, considering that the Solicitor General, the government officer
generally empowered to represent the people, has entered his appearance for respondents in this
case.
Respondents further contend that publication in the Official Gazette is not a sine qua non
requirement for the effectivity of laws where the laws themselves provide for their own effectivity
dates. It is thus submitted that since the presidential issuances in question contain special provisions
as to the date they are to take effect, publication in the Official Gazette is not indispensable for their
effectivity. The point stressed is anchored on Article 2 of the Civil Code:
Art. 2. Laws shall take effect after fifteen days following the completion of their
publication in the Official Gazette, unless it is otherwise provided, ...
The interpretation given by respondent is in accord with this Court's construction of said article. In a
long line of decisions,
4
this Court has ruled that publication in the Official Gazette is necessary in those
cases where the legislation itself does not provide for its effectivity date-for then the date of publication is
material for determining its date of effectivity, which is the fifteenth day following its publication-but not
when the law itself provides for the date when it goes into effect.
Respondents' argument, however, is logically correct only insofar as it equates the effectivity of laws
with the fact of publication. Considered in the light of other statutes applicable to the issue at hand,
the conclusion is easily reached that said Article 2 does not preclude the requirement of publication
in the Official Gazette, even if the law itself provides for the date of its effectivity. Thus, Section 1 of
Commonwealth Act 638 provides as follows:
Section 1. There shall be published in the Official Gazette [1] all important legisiative
acts and resolutions of a public nature of the, Congress of the Philippines; [2] all
executive and administrative orders and proclamations, except such as have no
general applicability; [3] decisions or abstracts of decisions of the Supreme Court
and the Court of Appeals as may be deemed by said courts of sufficient importance
to be so published; [4] such documents or classes of documents as may be required
so to be published by law; and [5] such documents or classes of documents as the
President of the Philippines shall determine from time to time to have general
applicability and legal effect, or which he may authorize so to be published. ...
The clear object of the above-quoted provision is to give the general public adequate notice of the
various laws which are to regulate their actions and conduct as citizens. Without such notice and
publication, there would be no basis for the application of the maxim "ignorantia legis non excusat." It
would be the height of injustice to punish or otherwise burden a citizen for the transgression of a law
of which he had no notice whatsoever, not even a constructive one.
Perhaps at no time since the establishment of the Philippine Republic has the publication of laws
taken so vital significance that at this time when the people have bestowed upon the President a
power heretofore enjoyed solely by the legislature. While the people are kept abreast by the mass
media of the debates and deliberations in the Batasan Pambansaand for the diligent ones, ready
access to the legislative recordsno such publicity accompanies the law-making process of the
President. Thus, without publication, the people have no means of knowing what presidential
decrees have actually been promulgated, much less a definite way of informing themselves of the
specific contents and texts of such decrees. As the Supreme Court of Spain ruled: "Bajo la
denominacion generica de leyes, se comprenden tambien los reglamentos, Reales decretos,
Instrucciones, Circulares y Reales ordines dictadas de conformidad con las mismas por el Gobierno
en uso de su potestad.
5

The very first clause of Section I of Commonwealth Act 638 reads: "There shall be published in the
Official Gazette ... ." The word "shall" used therein imposes upon respondent officials an imperative
duty. That duty must be enforced if the Constitutional right of the people to be informed on matters of
public concern is to be given substance and reality. The law itself makes a list of what should be
published in the Official Gazette. Such listing, to our mind, leaves respondents with no discretion
whatsoever as to what must be included or excluded from such publication.
The publication of all presidential issuances "of a public nature" or "of general applicability" is
mandated by law. Obviously, presidential decrees that provide for fines, forfeitures or penalties for
their violation or otherwise impose a burden or. the people, such as tax and revenue measures, fall
within this category. Other presidential issuances which apply only to particular persons or class of
persons such as administrative and executive orders need not be published on the assumption that
they have been circularized to all concerned.
6

It is needless to add that the publication of presidential issuances "of a public nature" or "of general
applicability" is a requirement of due process. It is a rule of law that before a person may be bound
by law, he must first be officially and specifically informed of its contents. As Justice Claudio
Teehankee said in Peralta vs. COMELEC
7
:
In a time of proliferating decrees, orders and letters of instructions which all form part
of the law of the land, the requirement of due process and the Rule of Law demand
that the Official Gazette as the official government repository promulgate and publish
the texts of all such decrees, orders and instructions so that the people may know
where to obtain their official and specific contents.
The Court therefore declares that presidential issuances of general application, which have not been
published, shall have no force and effect. Some members of the Court, quite apprehensive about the
possible unsettling effect this decision might have on acts done in reliance of the validity of those
presidential decrees which were published only during the pendency of this petition, have put the
question as to whether the Court's declaration of invalidity apply to P.D.s which had been enforced
or implemented prior to their publication. The answer is all too familiar. In similar situations in the
past this Court had taken the pragmatic and realistic course set forth in Chicot County Drainage
District vs. Baxter Bank
8
to wit:
The courts below have proceeded on the theory that the Act of Congress, having
been found to be unconstitutional, was not a law; that it was inoperative, conferring
no rights and imposing no duties, and hence affording no basis for the challenged
decree. Norton v. Shelby County, 118 U.S. 425, 442; Chicago, 1. & L. Ry. Co. v.
Hackett, 228 U.S. 559, 566. It is quite clear, however, that such broad statements as
to the effect of a determination of unconstitutionality must be taken with
qualifications. The actual existence of a statute, prior to such a determination, is an
operative fact and may have consequences which cannot justly be ignored. The past
cannot always be erased by a new judicial declaration. The effect of the subsequent
ruling as to invalidity may have to be considered in various aspects-with respect to
particular conduct, private and official. Questions of rights claimed to have become
vested, of status, of prior determinations deemed to have finality and acted upon
accordingly, of public policy in the light of the nature both of the statute and of its
previous application, demand examination. These questions are among the most
difficult of those which have engaged the attention of courts, state and federal and it
is manifest from numerous decisions that an all-inclusive statement of a principle of
absolute retroactive invalidity cannot be justified.
Consistently with the above principle, this Court in Rutter vs. Esteban
9
sustained the right of a party
under the Moratorium Law, albeit said right had accrued in his favor before said law was declared
unconstitutional by this Court.
Similarly, the implementation/enforcement of presidential decrees prior to their publication in the
Official Gazette is "an operative fact which may have consequences which cannot be justly ignored.
The past cannot always be erased by a new judicial declaration ... that an all-inclusive statement of a
principle of absolute retroactive invalidity cannot be justified."
From the report submitted to the Court by the Clerk of Court, it appears that of the presidential
decrees sought by petitioners to be published in the Official Gazette, only Presidential Decrees Nos.
1019 to 1030, inclusive, 1278, and 1937 to 1939, inclusive, have not been so published.
10
Neither
the subject matters nor the texts of these PDs can be ascertained since no copies thereof are available.
But whatever their subject matter may be, it is undisputed that none of these unpublished PDs has ever
been implemented or enforced by the government. In Pesigan vs. Angeles,
11
the Court, through Justice
Ramon Aquino, ruled that "publication is necessary to apprise the public of the contents of [penal]
regulations and make the said penalties binding on the persons affected thereby. " The cogency of this
holding is apparently recognized by respondent officials considering the manifestation in their comment
that "the government, as a matter of policy, refrains from prosecuting violations of criminal laws until the
same shall have been published in the Official Gazette or in some other publication, even though some
criminal laws provide that they shall take effect immediately.
WHEREFORE, the Court hereby orders respondents to publish in the Official Gazette all
unpublished presidential issuances which are of general application, and unless so published, they
shall have no binding force and effect.
SO ORDERED.
Relova, J., concurs.
Aquino, J., took no part.
Concepcion, Jr., J., is on leave.


Separate Opinions

FERNANDO, C.J ., concurring (with qualification):
There is on the whole acceptance on my part of the views expressed in the ably written opinion of
Justice Escolin. I am unable, however, to concur insofar as it would unqualifiedly impose the
requirement of publication in the Official Gazette for unpublished "presidential issuances" to have
binding force and effect.
I shall explain why.
1. It is of course true that without the requisite publication, a due process question would arise if
made to apply adversely to a party who is not even aware of the existence of any legislative or
executive act having the force and effect of law. My point is that such publication required need not
be confined to the Official Gazette. From the pragmatic standpoint, there is an advantage to be
gained. It conduces to certainty. That is too be admitted. It does not follow, however, that failure to
do so would in all cases and under all circumstances result in a statute, presidential decree or any
other executive act of the same category being bereft of any binding force and effect. To so hold
would, for me, raise a constitutional question. Such a pronouncement would lend itself to the
interpretation that such a legislative or presidential act is bereft of the attribute of effectivity unless
published in the Official Gazette. There is no such requirement in the Constitution as Justice Plana
so aptly pointed out. It is true that what is decided now applies only to past "presidential issuances".
Nonetheless, this clarification is, to my mind, needed to avoid any possible misconception as to what
is required for any statute or presidential act to be impressed with binding force or effectivity.
2. It is quite understandable then why I concur in the separate opinion of Justice Plana. Its first
paragraph sets forth what to me is the constitutional doctrine applicable to this case. Thus: "The
Philippine Constitution does not require the publication of laws as a prerequisite for their effectivity,
unlike some Constitutions elsewhere. It may be said though that the guarantee of due process
requires notice of laws to affected Parties before they can be bound thereby; but such notice is not
necessarily by publication in the Official Gazette. The due process clause is not that precise.
1
I am
likewise in agreement with its closing paragraph: "In fine, I concur in the majority decision to the extent
that it requires notice before laws become effective, for no person should be bound by a law without
notice. This is elementary fairness. However, I beg to disagree insofar as it holds that such notice shall be
by publication in the Official Gazette.
2

3. It suffices, as was stated by Judge Learned Hand, that law as the command of the government
"must be ascertainable in some form if it is to be enforced at all.
3
It would indeed be to reduce it to the
level of mere futility, as pointed out by Justice Cardozo, "if it is unknown and unknowable.
4
Publication, to
repeat, is thus essential. What I am not prepared to subscribe to is the doctrine that it must be in the
Official Gazette. To be sure once published therein there is the ascertainable mode of determining the
exact date of its effectivity. Still for me that does not dispose of the question of what is the jural effect of
past presidential decrees or executive acts not so published. For prior thereto, it could be that parties
aware of their existence could have conducted themselves in accordance with their provisions. If no legal
consequences could attach due to lack of publication in the Official Gazette, then serious problems could
arise. Previous transactions based on such "Presidential Issuances" could be open to question. Matters
deemed settled could still be inquired into. I am not prepared to hold that such an effect is contemplated
by our decision. Where such presidential decree or executive act is made the basis of a criminal
prosecution, then, of course, its ex post facto character becomes evident.
5
In civil cases though,
retroactivity as such is not conclusive on the due process aspect. There must still be a showing of
arbitrariness. Moreover, where the challenged presidential decree or executive act was issued under the
police power, the non-impairment clause of the Constitution may not always be successfully invoked.
There must still be that process of balancing to determine whether or not it could in such a case be
tainted by infirmity.
6
In traditional terminology, there could arise then a question of unconstitutional
application. That is as far as it goes.
4. Let me make therefore that my qualified concurrence goes no further than to affirm that
publication is essential to the effectivity of a legislative or executive act of a general application. I am
not in agreement with the view that such publication must be in the Official Gazette. The Civil Code
itself in its Article 2 expressly recognizes that the rule as to laws taking effect after fifteen days
following the completion of their publication in the Official Gazette is subject to this exception,
"unless it is otherwise provided." Moreover, the Civil Code is itself only a legislative enactment,
Republic Act No. 386. It does not and cannot have the juridical force of a constitutional command. A
later legislative or executive act which has the force and effect of law can legally provide for a
different rule.
5. Nor can I agree with the rather sweeping conclusion in the opinion of Justice Escolin that
presidential decrees and executive acts not thus previously published in the Official Gazette would
be devoid of any legal character. That would be, in my opinion, to go too far. It may be fraught, as
earlier noted, with undesirable consequences. I find myself therefore unable to yield assent to such a
pronouncement.
I am authorized to state that Justices Makasiar, Abad Santos, Cuevas, and Alampay concur in this
separate opinion.
Makasiar, Abad Santos, Cuevas and Alampay, JJ., concur.

TEEHANKEE, J ., concurring:
I concur with the main opinion of Mr. Justice Escolin and the concurring opinion of Mme. Justice
Herrera. The Rule of Law connotes a body of norms and laws published and ascertainable and of
equal application to all similarly circumstances and not subject to arbitrary change but only under
certain set procedures. The Court has consistently stressed that "it is an elementary rule of fair play
and justice that a reasonable opportunity to be informed must be afforded to the people who are
commanded to obey before they can be punished for its violation,
1
citing the settled principle based on
due process enunciated in earlier cases that "before the public is bound by its contents, especially its
penal provisions, a law, regulation or circular must first be published and the people officially and
specially informed of said contents and its penalties.
Without official publication in the Official Gazette as required by Article 2 of the Civil Code and the
Revised Administrative Code, there would be no basis nor justification for the corollary rule of Article
3 of the Civil Code (based on constructive notice that the provisions of the law are ascertainable
from the public and official repository where they are duly published) that "Ignorance of the law
excuses no one from compliance therewith.
Respondents' contention based on a misreading of Article 2 of the Civil Code that "only laws which
are silent as to their effectivity [date] need be published in the Official Gazette for their effectivity" is
manifestly untenable. The plain text and meaning of the Civil Code is that "laws shall take effect after
fifteen days following the completion of their publication in the Official Gazette, unless it is otherwise
provided, " i.e. a different effectivity date is provided by the law itself. This proviso perforce refers to
a law that has been duly published pursuant to the basic constitutional requirements of due process.
The best example of this is the Civil Code itself: the same Article 2 provides otherwise that it "shall
take effect [only] one year [not 15 days] after such publication.
2
To sustain respondents' misreading
that "most laws or decrees specify the date of their effectivity and for this reason, publication in the Official
Gazette is not necessary for their effectivity
3
would be to nullify and render nugatory the Civil Code's
indispensable and essential requirement of prior publication in the Official Gazette by the simple
expedient of providing for immediate effectivity or an earlier effectivity date in the law itself before the
completion of 15 days following its publication which is the period generally fixed by the Civil Code for its
proper dissemination.

MELENCIO-HERRERA, J ., concurring:
I agree. There cannot be any question but that even if a decree provides for a date of effectivity, it
has to be published. What I would like to state in connection with that proposition is that when a date
of effectivity is mentioned in the decree but the decree becomes effective only fifteen (15) days after
its publication in the Official Gazette, it will not mean that the decree can have retroactive effect to
the date of effectivity mentioned in the decree itself. There should be no retroactivity if the
retroactivity will run counter to constitutional rights or shall destroy vested rights.

PLANA, J ., concurring (with qualification):
The Philippine Constitution does not require the publication of laws as a prerequisite for their
effectivity, unlike some Constitutions elsewhere. * It may be said though that the guarantee of due process requires
notice of laws to affected parties before they can be bound thereby; but such notice is not necessarily by publication in the Official Gazette.
The due process clause is not that precise. Neither is the publication of laws in theOfficial Gazette required by any statute as a prerequisite
for their effectivity, if said laws already provide for their effectivity date.
Article 2 of the Civil Code provides that "laws shall take effect after fifteen days following the
completion of their publication in the Official Gazette, unless it is otherwise provided " Two things
may be said of this provision: Firstly, it obviously does not apply to a law with a built-in provision as
to when it will take effect. Secondly, it clearly recognizes that each law may provide not only a
different period for reckoning its effectivity date but also a different mode of notice. Thus, a law may
prescribe that it shall be published elsewhere than in the Official Gazette.
Commonwealth Act No. 638, in my opinion, does not support the proposition that for their
effectivity, laws must be published in the Official Gazette. The said law is simply "An Act to Provide
for the Uniform Publication and Distribution of the Official Gazette." Conformably therewith, it
authorizes the publication of the Official Gazette, determines its frequency, provides for its sale and
distribution, and defines the authority of the Director of Printing in relation thereto. It also enumerates
what shall be published in the Official Gazette, among them, "important legislative acts and
resolutions of a public nature of the Congress of the Philippines" and "all executive and
administrative orders and proclamations, except such as have no general applicability." It is
noteworthy that not all legislative acts are required to be published in the Official Gazette but only
"important" ones "of a public nature." Moreover, the said law does not provide that publication in the
Official Gazette is essential for the effectivity of laws. This is as it should be, for all statutes are equal
and stand on the same footing. A law, especially an earlier one of general application such as
Commonwealth Act No. 638, cannot nullify or restrict the operation of a subsequent statute that has
a provision of its own as to when and how it will take effect. Only a higher law, which is the
Constitution, can assume that role.
In fine, I concur in the majority decision to the extent that it requires notice before laws become
effective, for no person should be bound by a law without notice. This is elementary fairness.
However, I beg to disagree insofar as it holds that such notice shall be by publication in the Official
Gazette.
Cuevas and Alampay, JJ., concur.

GUTIERREZ, Jr., J ., concurring:
I concur insofar as publication is necessary but reserve my vote as to the necessity of such
publication being in the Official Gazette.

DE LA FUENTE, J ., concurring:
I concur insofar as the opinion declares the unpublished decrees and issuances of a public nature or
general applicability ineffective, until due publication thereof.



Separate Opinions
FERNANDO, C.J ., concurring (with qualification):
There is on the whole acceptance on my part of the views expressed in the ably written opinion of
Justice Escolin. I am unable, however, to concur insofar as it would unqualifiedly impose the
requirement of publication in the Official Gazette for unpublished "presidential issuances" to have
binding force and effect.
I shall explain why.
1. It is of course true that without the requisite publication, a due process question would arise if
made to apply adversely to a party who is not even aware of the existence of any legislative or
executive act having the force and effect of law. My point is that such publication required need not
be confined to the Official Gazette. From the pragmatic standpoint, there is an advantage to be
gained. It conduces to certainty. That is too be admitted. It does not follow, however, that failure to
do so would in all cases and under all circumstances result in a statute, presidential decree or any
other executive act of the same category being bereft of any binding force and effect. To so hold
would, for me, raise a constitutional question. Such a pronouncement would lend itself to the
interpretation that such a legislative or presidential act is bereft of the attribute of effectivity unless
published in the Official Gazette. There is no such requirement in the Constitution as Justice Plana
so aptly pointed out. It is true that what is decided now applies only to past "presidential issuances".
Nonetheless, this clarification is, to my mind, needed to avoid any possible misconception as to what
is required for any statute or presidential act to be impressed with binding force or effectivity.
2. It is quite understandable then why I concur in the separate opinion of Justice Plana. Its first
paragraph sets forth what to me is the constitutional doctrine applicable to this case. Thus: "The
Philippine Constitution does not require the publication of laws as a prerequisite for their effectivity,
unlike some Constitutions elsewhere. It may be said though that the guarantee of due process
requires notice of laws to affected Parties before they can be bound thereby; but such notice is not
necessarily by publication in the Official Gazette. The due process clause is not that precise.
1
I am
likewise in agreement with its closing paragraph: "In fine, I concur in the majority decision to the extent
that it requires notice before laws become effective, for no person should be bound by a law without
notice. This is elementary fairness. However, I beg to disagree insofar as it holds that such notice shall be
by publication in the Official Gazette.
2

3. It suffices, as was stated by Judge Learned Hand, that law as the command of the government
"must be ascertainable in some form if it is to be enforced at all.
3
It would indeed be to reduce it to the
level of mere futility, as pointed out by Justice Cardozo, "if it is unknown and unknowable.
4
Publication, to
repeat, is thus essential. What I am not prepared to subscribe to is the doctrine that it must be in the
Official Gazette. To be sure once published therein there is the ascertainable mode of determining the
exact date of its effectivity. Still for me that does not dispose of the question of what is the jural effect of
past presidential decrees or executive acts not so published. For prior thereto, it could be that parties
aware of their existence could have conducted themselves in accordance with their provisions. If no legal
consequences could attach due to lack of publication in the Official Gazette, then serious problems could
arise. Previous transactions based on such "Presidential Issuances" could be open to question. Matters
deemed settled could still be inquired into. I am not prepared to hold that such an effect is contemplated
by our decision. Where such presidential decree or executive act is made the basis of a criminal
prosecution, then, of course, its ex post facto character becomes evident.
5
In civil cases though,
retroactivity as such is not conclusive on the due process aspect. There must still be a showing of
arbitrariness. Moreover, where the challenged presidential decree or executive act was issued under the
police power, the non-impairment clause of the Constitution may not always be successfully invoked.
There must still be that process of balancing to determine whether or not it could in such a case be
tainted by infirmity.
6
In traditional terminology, there could arise then a question of unconstitutional
application. That is as far as it goes.
4. Let me make therefore that my qualified concurrence goes no further than to affirm that
publication is essential to the effectivity of a legislative or executive act of a general application. I am
not in agreement with the view that such publication must be in the Official Gazette. The Civil Code
itself in its Article 2 expressly recognizes that the rule as to laws taking effect after fifteen days
following the completion of their publication in the Official Gazette is subject to this exception,
"unless it is otherwise provided." Moreover, the Civil Code is itself only a legislative enactment,
Republic Act No. 386. It does not and cannot have the juridical force of a constitutional command. A
later legislative or executive act which has the force and effect of law can legally provide for a
different rule.
5. Nor can I agree with the rather sweeping conclusion in the opinion of Justice Escolin that
presidential decrees and executive acts not thus previously published in the Official Gazette would
be devoid of any legal character. That would be, in my opinion, to go too far. It may be fraught, as
earlier noted, with undesirable consequences. I find myself therefore unable to yield assent to such a
pronouncement.
I am authorized to state that Justices Makasiar, Abad Santos, Cuevas, and Alampay concur in this
separate opinion.
Makasiar, Abad Santos, Cuevas and Alampay, JJ., concur.

TEEHANKEE, J ., concurring:
I concur with the main opinion of Mr. Justice Escolin and the concurring opinion of Mme. Justice
Herrera. The Rule of Law connotes a body of norms and laws published and ascertainable and of
equal application to all similarly circumstances and not subject to arbitrary change but only under
certain set procedures. The Court has consistently stressed that "it is an elementary rule of fair play
and justice that a reasonable opportunity to be informed must be afforded to the people who are
commanded to obey before they can be punished for its violation,
1
citing the settled principle based on
due process enunciated in earlier cases that "before the public is bound by its contents, especially its
penal provisions, a law, regulation or circular must first be published and the people officially and
specially informed of said contents and its penalties.
Without official publication in the Official Gazette as required by Article 2 of the Civil Code and the
Revised Administrative Code, there would be no basis nor justification for the corollary rule of Article
3 of the Civil Code (based on constructive notice that the provisions of the law are ascertainable
from the public and official repository where they are duly published) that "Ignorance of the law
excuses no one from compliance therewith.
Respondents' contention based on a misreading of Article 2 of the Civil Code that "only laws which
are silent as to their effectivity [date] need be published in the Official Gazette for their effectivity" is
manifestly untenable. The plain text and meaning of the Civil Code is that "laws shall take effect after
fifteen days following the completion of their publication in the Official Gazette, unless it is otherwise
provided, " i.e. a different effectivity date is provided by the law itself. This proviso perforce refers to
a law that has been duly published pursuant to the basic constitutional requirements of due process.
The best example of this is the Civil Code itself: the same Article 2 provides otherwise that it "shall
take effect [only] one year [not 15 days] after such publication.
2
To sustain respondents' misreading
that "most laws or decrees specify the date of their effectivity and for this reason, publication in the Official
Gazette is not necessary for their effectivity
3
would be to nullify and render nugatory the Civil Code's
indispensable and essential requirement of prior publication in the Official Gazette by the simple
expedient of providing for immediate effectivity or an earlier effectivity date in the law itself before the
completion of 15 days following its publication which is the period generally fixed by the Civil Code for its
proper dissemination.

MELENCIO-HERRERA, J ., concurring:
I agree. There cannot be any question but that even if a decree provides for a date of effectivity, it
has to be published. What I would like to state in connection with that proposition is that when a date
of effectivity is mentioned in the decree but the decree becomes effective only fifteen (15) days after
its publication in the Official Gazette, it will not mean that the decree can have retroactive effect to
the date of effectivity mentioned in the decree itself. There should be no retroactivity if the
retroactivity will run counter to constitutional rights or shall destroy vested rights.

PLANA, J ., concurring (with qualification):
The Philippine Constitution does not require the publication of laws as a prerequisite for their
effectivity, unlike some Constitutions elsewhere. * It may be said though that the guarantee of due process requires
notice of laws to affected parties before they can be bound thereby; but such notice is not necessarily by publication in the Official Gazette.
The due process clause is not that precise. Neither is the publication of laws in theOfficial Gazette required by any statute as a prerequisite
for their effectivity, if said laws already provide for their effectivity date.
Article 2 of the Civil Code provides that "laws shall take effect after fifteen days following the
completion of their publication in the Official Gazette, unless it is otherwise provided " Two things
may be said of this provision: Firstly, it obviously does not apply to a law with a built-in provision as
to when it will take effect. Secondly, it clearly recognizes that each law may provide not only a
different period for reckoning its effectivity date but also a different mode of notice. Thus, a law may
prescribe that it shall be published elsewhere than in the Official Gazette.
Commonwealth Act No. 638, in my opinion, does not support the proposition that for their
effectivity, laws must be published in the Official Gazette. The said law is simply "An Act to Provide
for the Uniform Publication and Distribution of the Official Gazette." Conformably therewith, it
authorizes the publication of the Official Gazette, determines its frequency, provides for its sale and
distribution, and defines the authority of the Director of Printing in relation thereto. It also enumerates
what shall be published in the Official Gazette, among them, "important legislative acts and
resolutions of a public nature of the Congress of the Philippines" and "all executive and
administrative orders and proclamations, except such as have no general applicability." It is
noteworthy that not all legislative acts are required to be published in the Official Gazette but only
"important" ones "of a public nature." Moreover, the said law does not provide that publication in the
Official Gazette is essential for the effectivity of laws. This is as it should be, for all statutes are equal
and stand on the same footing. A law, especially an earlier one of general application such as
Commonwealth Act No. 638, cannot nullify or restrict the operation of a subsequent statute that has
a provision of its own as to when and how it will take effect. Only a higher law, which is the
Constitution, can assume that role.
In fine, I concur in the majority decision to the extent that it requires notice before laws become
effective, for no person should be bound by a law without notice. This is elementary fairness.
However, I beg to disagree insofar as it holds that such notice shall be by publication in the Official
Gazette.
Cuevas and Alampay, JJ., concur.

GUTIERREZ, Jr., J ., concurring:
I concur insofar as publication is necessary but reserve my vote as to the necessity of such
publication being in the Official Gazette.

DE LA FUENTE, J ., concurring:
I concur insofar as the opinion declares the unpublished decrees and issuances of a public nature or
general applicability ineffective, until due publication thereof.

G.R. No. 133250 July 9, 2002
FRANCISCO I. CHAVEZ, petitioner,
vs.
PUBLIC ESTATES AUTHORITY and AMARI COASTAL BAY DEVELOPMENT
CORPORATION, respondents.
CARPIO, J .:
This is an original Petition for Mandamus with prayer for a writ of preliminary injunction and a
temporary restraining order. The petition seeks to compel the Public Estates Authority ("PEA" for
brevity) to disclose all facts on PEA's then on-going renegotiations with Amari Coastal Bay and
Development Corporation ("AMARI" for brevity) to reclaim portions of Manila Bay. The petition
further seeks to enjoin PEA from signing a new agreement with AMARI involving such reclamation.
The Facts
On November 20, 1973, the government, through the Commissioner of Public Highways, signed a
contract with the Construction and Development Corporation of the Philippines ("CDCP" for brevity)
to reclaim certain foreshore and offshore areas of Manila Bay. The contract also included the
construction of Phases I and II of the Manila-Cavite Coastal Road. CDCP obligated itself to carry out
all the works in consideration of fifty percent of the total reclaimed land.
On February 4, 1977, then President Ferdinand E. Marcos issued Presidential Decree No. 1084
creating PEA. PD No. 1084 tasked PEA "to reclaim land, including foreshore and submerged areas,"
and "to develop, improve, acquire, x x x lease and sell any and all kinds of lands."
1
On the same
date, then President Marcos issued Presidential Decree No. 1085 transferring to PEA the "lands
reclaimed in the foreshore and offshore of the Manila Bay"
2
under the Manila-Cavite Coastal Road
and Reclamation Project (MCCRRP).
On December 29, 1981, then President Marcos issued a memorandum directing PEA to amend its
contract with CDCP, so that "[A]ll future works in MCCRRP x x x shall be funded and owned by
PEA." Accordingly, PEA and CDCP executed a Memorandum of Agreement dated December 29,
1981, which stated:
"(i) CDCP shall undertake all reclamation, construction, and such other works in the
MCCRRP as may be agreed upon by the parties, to be paid according to progress of works
on a unit price/lump sum basis for items of work to be agreed upon, subject to price
escalation, retention and other terms and conditions provided for in Presidential Decree No.
1594. All the financing required for such works shall be provided by PEA.
x x x
(iii) x x x CDCP shall give up all its development rights and hereby agrees to cede and
transfer in favor of PEA, all of the rights, title, interest and participation of CDCP in and to all
the areas of land reclaimed by CDCP in the MCCRRP as of December 30, 1981 which have
not yet been sold, transferred or otherwise disposed of by CDCP as of said date, which
areas consist of approximately Ninety-Nine Thousand Four Hundred Seventy Three (99,473)
square meters in the Financial Center Area covered by land pledge No. 5 and approximately
Three Million Three Hundred Eighty Two Thousand Eight Hundred Eighty Eight (3,382,888)
square meters of reclaimed areas at varying elevations above Mean Low Water Level
located outside the Financial Center Area and the First Neighborhood Unit."
3

On January 19, 1988, then President Corazon C. Aquino issued Special Patent No. 3517, granting
and transferring to PEA "the parcels of land so reclaimed under the Manila-Cavite Coastal Road and
Reclamation Project (MCCRRP) containing a total area of one million nine hundred fifteen thousand
eight hundred ninety four (1,915,894) square meters." Subsequently, on April 9, 1988, the Register
of Deeds of the Municipality of Paraaque issued Transfer Certificates of Title Nos. 7309, 7311, and
7312, in the name of PEA, covering the three reclaimed islands known as the "Freedom Islands"
located at the southern portion of the Manila-Cavite Coastal Road, Paraaque City. The Freedom
Islands have a total land area of One Million Five Hundred Seventy Eight Thousand Four Hundred
and Forty One (1,578,441) square meters or 157.841 hectares.
On April 25, 1995, PEA entered into a Joint Venture Agreement ("JVA" for brevity) with AMARI, a
private corporation, to develop the Freedom Islands. The JVA also required the reclamation of an
additional 250 hectares of submerged areas surrounding these islands to complete the configuration
in the Master Development Plan of the Southern Reclamation Project-MCCRRP. PEA and AMARI
entered into the JVA through negotiation without public bidding.
4
On April 28, 1995, the Board of
Directors of PEA, in its Resolution No. 1245, confirmed the JVA.
5
On June 8, 1995, then President
Fidel V. Ramos, through then Executive Secretary Ruben Torres, approved the JVA.
6

On November 29, 1996, then Senate President Ernesto Maceda delivered a privilege speech in the
Senate and denounced the JVA as the "grandmother of all scams." As a result, the Senate
Committee on Government Corporations and Public Enterprises, and the Committee on
Accountability of Public Officers and Investigations, conducted a joint investigation. The Senate
Committees reported the results of their investigation in Senate Committee Report No. 560 dated
September 16, 1997.
7
Among the conclusions of their report are: (1) the reclaimed lands PEA seeks
to transfer to AMARI under the JVA are lands of the public domain which the government has not
classified as alienable lands and therefore PEA cannot alienate these lands; (2) the certificates of
title covering the Freedom Islands are thus void, and (3) the JVA itself is illegal.
On December 5, 1997, then President Fidel V. Ramos issued Presidential Administrative Order No.
365 creating a Legal Task Force to conduct a study on the legality of the JVA in view of Senate
Committee Report No. 560. The members of the Legal Task Force were the Secretary of
Justice,
8
the Chief Presidential Legal Counsel,
9
and the Government Corporate Counsel.
10
The Legal
Task Force upheld the legality of the JVA, contrary to the conclusions reached by the Senate
Committees.
11

On April 4 and 5, 1998, the Philippine Daily Inquirer and Today published reports that there were on-
going renegotiations between PEA and AMARI under an order issued by then President Fidel V.
Ramos. According to these reports, PEA Director Nestor Kalaw, PEA Chairman Arsenio Yulo and
retired Navy Officer Sergio Cruz composed the negotiating panel of PEA.
On April 13, 1998, Antonio M. Zulueta filed before the Court a Petition for Prohibition with Application
for the Issuance of a Temporary Restraining Order and Preliminary Injunction docketed as G.R. No.
132994 seeking to nullify the JVA. The Court dismissed the petition "for unwarranted disregard of
judicial hierarchy, without prejudice to the refiling of the case before the proper court."
12

On April 27, 1998, petitioner Frank I. Chavez ("Petitioner" for brevity) as a taxpayer, filed the
instant Petition for Mandamus with Prayer for the Issuance of a Writ of Preliminary Injunction and
Temporary Restraining Order. Petitioner contends the government stands to lose billions of pesos in
the sale by PEA of the reclaimed lands to AMARI. Petitioner prays that PEA publicly disclose the
terms of any renegotiation of the JVA, invoking Section 28, Article II, and Section 7, Article III, of the
1987 Constitution on the right of the people to information on matters of public concern. Petitioner
assails the sale to AMARI of lands of the public domain as a blatant violation of Section 3, Article XII
of the 1987 Constitution prohibiting the sale of alienable lands of the public domain to private
corporations. Finally, petitioner asserts that he seeks to enjoin the loss of billions of pesos in
properties of the State that are of public dominion.
After several motions for extension of time,
13
PEA and AMARI filed their Comments on October 19,
1998 and June 25, 1998, respectively. Meanwhile, on December 28, 1998, petitioner filed an
Omnibus Motion: (a) to require PEA to submit the terms of the renegotiated PEA-AMARI contract;
(b) for issuance of a temporary restraining order; and (c) to set the case for hearing on oral
argument. Petitioner filed a Reiterative Motion for Issuance of a TRO dated May 26, 1999, which the
Court denied in a Resolution dated June 22, 1999.
In a Resolution dated March 23, 1999, the Court gave due course to the petition and required the
parties to file their respective memoranda.
On March 30, 1999, PEA and AMARI signed the Amended Joint Venture Agreement ("Amended
JVA," for brevity). On May 28, 1999, the Office of the President under the administration of then
President Joseph E. Estrada approved the Amended JVA.
Due to the approval of the Amended JVA by the Office of the President, petitioner now prays that on
"constitutional and statutory grounds the renegotiated contract be declared null and void."
14

The Issues
The issues raised by petitioner, PEA
15
and AMARI
16
are as follows:
I. WHETHER THE PRINCIPAL RELIEFS PRAYED FOR IN THE PETITION ARE MOOT
AND ACADEMIC BECAUSE OF SUBSEQUENT EVENTS;
II. WHETHER THE PETITION MERITS DISMISSAL FOR FAILING TO OBSERVE THE
PRINCIPLE GOVERNING THE HIERARCHY OF COURTS;
III. WHETHER THE PETITION MERITS DISMISSAL FOR NON-EXHAUSTION OF
ADMINISTRATIVE REMEDIES;
IV. WHETHER PETITIONER HAS LOCUS STANDI TO BRING THIS SUIT;
V. WHETHER THE CONSTITUTIONAL RIGHT TO INFORMATION INCLUDES OFFICIAL
INFORMATION ON ON-GOING NEGOTIATIONS BEFORE A FINAL AGREEMENT;
VI. WHETHER THE STIPULATIONS IN THE AMENDED JOINT VENTURE AGREEMENT
FOR THE TRANSFER TO AMARI OF CERTAIN LANDS, RECLAIMED AND STILL TO BE
RECLAIMED, VIOLATE THE 1987 CONSTITUTION; AND
VII. WHETHER THE COURT IS THE PROPER FORUM FOR RAISING THE ISSUE OF
WHETHER THE AMENDED JOINT VENTURE AGREEMENT IS GROSSLY
DISADVANTAGEOUS TO THE GOVERNMENT.
The Court's Ruling
First issue: whether the principal reliefs prayed for in the petition are moot and academic
because of subsequent events.
The petition prays that PEA publicly disclose the "terms and conditions of the on-going negotiations
for a new agreement." The petition also prays that the Court enjoin PEA from "privately entering into,
perfecting and/or executing any new agreement with AMARI."
PEA and AMARI claim the petition is now moot and academic because AMARI furnished petitioner
on June 21, 1999 a copy of the signed Amended JVA containing the terms and conditions agreed
upon in the renegotiations. Thus, PEA has satisfied petitioner's prayer for a public disclosure of the
renegotiations. Likewise, petitioner's prayer to enjoin the signing of the Amended JVA is now moot
because PEA and AMARI have already signed the Amended JVA on March 30, 1999. Moreover, the
Office of the President has approved the Amended JVA on May 28, 1999.
Petitioner counters that PEA and AMARI cannot avoid the constitutional issue by simply fast-tracking
the signing and approval of the Amended JVA before the Court could act on the issue. Presidential
approval does not resolve the constitutional issue or remove it from the ambit of judicial review.
We rule that the signing of the Amended JVA by PEA and AMARI and its approval by the President
cannot operate to moot the petition and divest the Court of its jurisdiction. PEA and AMARI have still
to implement the Amended JVA. The prayer to enjoin the signing of the Amended JVA on
constitutional grounds necessarily includes preventing its implementation if in the meantime PEA
and AMARI have signed one in violation of the Constitution. Petitioner's principal basis in assailing
the renegotiation of the JVA is its violation of Section 3, Article XII of the Constitution, which prohibits
the government from alienating lands of the public domain to private corporations. If the Amended
JVA indeed violates the Constitution, it is the duty of the Court to enjoin its implementation, and if
already implemented, to annul the effects of such unconstitutional contract.
The Amended JVA is not an ordinary commercial contract but one which seeks to transfer title and
ownership to 367.5 hectares of reclaimed lands and submerged areas of Manila Bay to a
single private corporation. It now becomes more compelling for the Court to resolve the issue to
insure the government itself does not violate a provision of the Constitution intended to safeguard
the national patrimony. Supervening events, whether intended or accidental, cannot prevent the
Court from rendering a decision if there is a grave violation of the Constitution. In the instant case, if
the Amended JVA runs counter to the Constitution, the Court can still prevent the transfer of title and
ownership of alienable lands of the public domain in the name of AMARI. Even in cases where
supervening events had made the cases moot, the Court did not hesitate to resolve the legal or
constitutional issues raised to formulate controlling principles to guide the bench, bar, and the
public.
17

Also, the instant petition is a case of first impression. All previous decisions of the Court involving
Section 3, Article XII of the 1987 Constitution, or its counterpart provision in the 1973
Constitution,
18
covered agricultural lands sold to private corporations which acquired the lands from
private parties. The transferors of the private corporations claimed or could claim the right to judicial
confirmation of their imperfect titles
19
under Title II of Commonwealth Act. 141 ("CA No. 141" for
brevity). In the instant case, AMARI seeks to acquire from PEA, a public corporation, reclaimed
lands and submerged areas for non-agricultural purposes by purchase under PD No. 1084
(charter of PEA) and Title III of CA No. 141. Certain undertakings by AMARI under the Amended
JVA constitute the consideration for the purchase. Neither AMARI nor PEA can claim judicial
confirmation of their titles because the lands covered by the Amended JVA are newly reclaimed or
still to be reclaimed. Judicial confirmation of imperfect title requires open, continuous, exclusive and
notorious occupation of agricultural lands of the public domain for at least thirty years since June 12,
1945 or earlier. Besides, the deadline for filing applications for judicial confirmation of imperfect title
expired on December 31, 1987.
20

Lastly, there is a need to resolve immediately the constitutional issue raised in this petition because
of the possible transfer at any time by PEA to AMARI of title and ownership to portions of the
reclaimed lands. Under the Amended JVA, PEA is obligated to transfer to AMARI the latter's seventy
percent proportionate share in the reclaimed areas as the reclamation progresses. The Amended
JVA even allows AMARI to mortgage at any time the entire reclaimed area to raise financing for the
reclamation project.
21

Second issue: whether the petition merits dismissal for failing to observe the principle
governing the hierarchy of courts.
PEA and AMARI claim petitioner ignored the judicial hierarchy by seeking relief directly from the
Court. The principle of hierarchy of courts applies generally to cases involving factual questions. As
it is not a trier of facts, the Court cannot entertain cases involving factual issues. The instant case,
however, raises constitutional issues of transcendental importance to the public.
22
The Court can
resolve this case without determining any factual issue related to the case. Also, the instant case is a
petition for mandamus which falls under the original jurisdiction of the Court under Section 5, Article
VIII of the Constitution. We resolve to exercise primary jurisdiction over the instant case.
Third issue: whether the petition merits dismissal for non-exhaustion of administrative
remedies.
PEA faults petitioner for seeking judicial intervention in compelling PEA to disclose publicly certain
information without first asking PEA the needed information. PEA claims petitioner's direct resort to
the Court violates the principle of exhaustion of administrative remedies. It also violates the rule that
mandamus may issue only if there is no other plain, speedy and adequate remedy in the ordinary
course of law.
PEA distinguishes the instant case from Taada v. Tuvera
23
where the Court granted the petition for
mandamus even if the petitioners there did not initially demand from the Office of the President the
publication of the presidential decrees. PEA points out that in Taada, the Executive Department
had an affirmative statutory duty under Article 2 of the Civil Code
24
and Section 1 of
Commonwealth Act No. 638
25
to publish the presidential decrees. There was, therefore, no need for
the petitioners in Taada to make an initial demand from the Office of the President. In the instant
case, PEA claims it has no affirmative statutory duty to disclose publicly information about its
renegotiation of the JVA. Thus, PEA asserts that the Court must apply the principle of exhaustion of
administrative remedies to the instant case in view of the failure of petitioner here to demand initially
from PEA the needed information.
The original JVA sought to dispose to AMARI public lands held by PEA, a government corporation.
Under Section 79 of the Government Auditing Code,
26
the disposition of government lands to private
parties requires public bidding. PEA was under a positive legal duty to disclose to the public the
terms and conditions for the sale of its lands. The law obligated PEA to make this public
disclosure even without demand from petitioner or from anyone. PEA failed to make this public
disclosure because the original JVA, like the Amended JVA, was the result of a negotiated
contract, not of a public bidding. Considering that PEA had an affirmative statutory duty to make the
public disclosure, and was even in breach of this legal duty, petitioner had the right to seek direct
judicial intervention.
Moreover, and this alone is determinative of this issue, the principle of exhaustion of administrative
remedies does not apply when the issue involved is a purely legal or constitutional question.
27
The
principal issue in the instant case is the capacity of AMARI to acquire lands held by PEA in view of
the constitutional ban prohibiting the alienation of lands of the public domain to private corporations.
We rule that the principle of exhaustion of administrative remedies does not apply in the instant
case.
Fourth issue: whether petitioner has locus standi to bring this suit
PEA argues that petitioner has no standing to institute mandamus proceedings to enforce his
constitutional right to information without a showing that PEA refused to perform an affirmative duty
imposed on PEA by the Constitution. PEA also claims that petitioner has not shown that he will
suffer any concrete injury because of the signing or implementation of the Amended JVA. Thus,
there is no actual controversy requiring the exercise of the power of judicial review.
The petitioner has standing to bring this taxpayer's suit because the petition seeks to compel PEA to
comply with its constitutional duties. There are two constitutional issues involved here. First is the
right of citizens to information on matters of public concern. Second is the application of a
constitutional provision intended to insure the equitable distribution of alienable lands of the public
domain among Filipino citizens. The thrust of the first issue is to compel PEA to disclose publicly
information on the sale of government lands worth billions of pesos, information which the
Constitution and statutory law mandate PEA to disclose. The thrust of the second issue is to prevent
PEA from alienating hundreds of hectares of alienable lands of the public domain in violation of the
Constitution, compelling PEA to comply with a constitutional duty to the nation.
Moreover, the petition raises matters of transcendental importance to the public. In Chavez v.
PCGG,
28
the Court upheld the right of a citizen to bring a taxpayer's suit on matters of transcendental
importance to the public, thus -
"Besides, petitioner emphasizes, the matter of recovering the ill-gotten wealth of the
Marcoses is an issue of 'transcendental importance to the public.' He asserts that ordinary
taxpayers have a right to initiate and prosecute actions questioning the validity of acts or
orders of government agencies or instrumentalities, if the issues raised are of 'paramount
public interest,' and if they 'immediately affect the social, economic and moral well being of
the people.'
Moreover, the mere fact that he is a citizen satisfies the requirement of personal interest,
when the proceeding involves the assertion of a public right, such as in this case. He invokes
several decisions of this Court which have set aside the procedural matter of locus standi,
when the subject of the case involved public interest.
x x x
In Taada v. Tuvera, the Court asserted that when the issue concerns a public right and the
object of mandamus is to obtain the enforcement of a public duty, the people are regarded
as the real parties in interest; and because it is sufficient that petitioner is a citizen and as
such is interested in the execution of the laws, he need not show that he has any legal or
special interest in the result of the action. In the aforesaid case, the petitioners sought to
enforce their right to be informed on matters of public concern, a right then recognized in
Section 6, Article IV of the 1973 Constitution, in connection with the rule that laws in order to
be valid and enforceable must be published in the Official Gazette or otherwise effectively
promulgated. In ruling for the petitioners' legal standing, the Court declared that the right they
sought to be enforced 'is a public right recognized by no less than the fundamental law of the
land.'
Legaspi v. Civil Service Commission, while reiterating Taada, further declared that 'when a
mandamus proceeding involves the assertion of a public right, the requirement of personal
interest is satisfied by the mere fact that petitioner is a citizen and, therefore, part of the
general 'public' which possesses the right.'
Further, in Albano v. Reyes, we said that while expenditure of public funds may not have
been involved under the questioned contract for the development, management and
operation of the Manila International Container Terminal, 'public interest [was] definitely
involved considering the important role [of the subject contract] . . . in the economic
development of the country and the magnitude of the financial consideration involved.' We
concluded that, as a consequence, the disclosure provision in the Constitution would
constitute sufficient authority for upholding the petitioner's standing.
Similarly, the instant petition is anchored on the right of the people to information and access
to official records, documents and papers a right guaranteed under Section 7, Article III of
the 1987 Constitution. Petitioner, a former solicitor general, is a Filipino citizen. Because of
the satisfaction of the two basic requisites laid down by decisional law to sustain petitioner's
legal standing, i.e. (1) the enforcement of a public right (2) espoused by a Filipino citizen, we
rule that the petition at bar should be allowed."
We rule that since the instant petition, brought by a citizen, involves the enforcement of constitutional
rights - to information and to the equitable diffusion of natural resources - matters of transcendental
public importance, the petitioner has the requisite locus standi.
Fifth issue: whether the constitutional right to information includes official information on on-
going negotiations before a final agreement.
Section 7, Article III of the Constitution explains the people's right to information on matters of public
concern in this manner:
"Sec. 7. The right of the people to information on matters of public concern shall be
recognized. Access to official records, and to documents, and papers pertaining to
official acts, transactions, or decisions, as well as to government research data used as
basis for policy development, shall be afforded the citizen, subject to such limitations as may
be provided by law." (Emphasis supplied)
The State policy of full transparency in all transactions involving public interest reinforces the
people's right to information on matters of public concern. This State policy is expressed in Section
28, Article II of the Constitution, thus:
"Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and
implements a policy of full public disclosure of all its transactions involving public
interest." (Emphasis supplied)
These twin provisions of the Constitution seek to promote transparency in policy-making and in the
operations of the government, as well as provide the people sufficient information to exercise
effectively other constitutional rights. These twin provisions are essential to the exercise of freedom
of expression. If the government does not disclose its official acts, transactions and decisions to
citizens, whatever citizens say, even if expressed without any restraint, will be speculative and
amount to nothing. These twin provisions are also essential to hold public officials "at all times x x x
accountable to the people,"
29
for unless citizens have the proper information, they cannot hold public
officials accountable for anything. Armed with the right information, citizens can participate in public
discussions leading to the formulation of government policies and their effective implementation. An
informed citizenry is essential to the existence and proper functioning of any democracy. As
explained by the Court in Valmonte v. Belmonte, J r.
30

"An essential element of these freedoms is to keep open a continuing dialogue or process of
communication between the government and the people. It is in the interest of the State that
the channels for free political discussion be maintained to the end that the government may
perceive and be responsive to the people's will. Yet, this open dialogue can be effective only
to the extent that the citizenry is informed and thus able to formulate its will intelligently. Only
when the participants in the discussion are aware of the issues and have access to
information relating thereto can such bear fruit."
PEA asserts, citing Chavez v. PCGG,
31
that in cases of on-going negotiations the right to information
is limited to "definite propositions of the government." PEA maintains the right does not include
access to "intra-agency or inter-agency recommendations or communications during the stage when
common assertions are still in the process of being formulated or are in the 'exploratory stage'."
Also, AMARI contends that petitioner cannot invoke the right at the pre-decisional stage or before
the closing of the transaction. To support its contention, AMARI cites the following discussion in the
1986 Constitutional Commission:
"Mr. Suarez. And when we say 'transactions' which should be distinguished from contracts,
agreements, or treaties or whatever, does the Gentleman refer to the steps leading to the
consummation of the contract, or does he refer to the contract itself?
Mr. Ople: The 'transactions' used here, I suppose is generic and therefore, it can cover
both steps leading to a contract and already a consummated contract, Mr. Presiding
Officer.
Mr. Suarez: This contemplates inclusion of negotiations leading to the consummation
of the transaction.
Mr. Ople: Yes, subject only to reasonable safeguards on the national interest.
Mr. Suarez: Thank you."
32
(Emphasis supplied)
AMARI argues there must first be a consummated contract before petitioner can invoke the right.
Requiring government officials to reveal their deliberations at the pre-decisional stage will degrade
the quality of decision-making in government agencies. Government officials will hesitate to express
their real sentiments during deliberations if there is immediate public dissemination of their
discussions, putting them under all kinds of pressure before they decide.
We must first distinguish between information the law on public bidding requires PEA to disclose
publicly, and information the constitutional right to information requires PEA to release to the public.
Before the consummation of the contract, PEA must, on its own and without demand from anyone,
disclose to the public matters relating to the disposition of its property. These include the size,
location, technical description and nature of the property being disposed of, the terms and conditions
of the disposition, the parties qualified to bid, the minimum price and similar information. PEA must
prepare all these data and disclose them to the public at the start of the disposition process, long
before the consummation of the contract, because the Government Auditing Code requires public
bidding. If PEA fails to make this disclosure, any citizen can demand from PEA this information at
any time during the bidding process.
Information, however, on on-going evaluation or review of bids or proposals being undertaken by
the bidding or review committee is not immediately accessible under the right to information. While
the evaluation or review is still on-going, there are no "official acts, transactions, or decisions" on the
bids or proposals. However, once the committee makes its official recommendation, there arises
a "definite proposition" on the part of the government. From this moment, the public's right to
information attaches, and any citizen can access all the non-proprietary information leading to such
definite proposition. In Chavez v. PCGG,
33
the Court ruled as follows:
"Considering the intent of the framers of the Constitution, we believe that it is incumbent
upon the PCGG and its officers, as well as other government representatives, to disclose
sufficient public information on any proposed settlement they have decided to take up with
the ostensible owners and holders of ill-gotten wealth. Such information, though, must
pertain to definite propositions of the government, not necessarily to intra-agency or
inter-agency recommendations or communications during the stage when common
assertions are still in the process of being formulated or are in the "exploratory" stage. There
is need, of course, to observe the same restrictions on disclosure of information in general,
as discussed earlier such as on matters involving national security, diplomatic or foreign
relations, intelligence and other classified information." (Emphasis supplied)
Contrary to AMARI's contention, the commissioners of the 1986 Constitutional Commission
understood that the right to information "contemplates inclusion of negotiations leading to the
consummation of the transaction."Certainly, a consummated contract is not a requirement for the
exercise of the right to information. Otherwise, the people can never exercise the right if no contract
is consummated, and if one is consummated, it may be too late for the public to expose its defects.1wphi 1. nt
Requiring a consummated contract will keep the public in the dark until the contract, which may be
grossly disadvantageous to the government or even illegal, becomes a fait accompli. This negates
the State policy of full transparency on matters of public concern, a situation which the framers of the
Constitution could not have intended. Such a requirement will prevent the citizenry from participating
in the public discussion of any proposed contract, effectively truncating a basic right enshrined in
the Bill of Rights. We can allow neither an emasculation of a constitutional right, nor a retreat by the
State of its avowed "policy of full disclosure of all its transactions involving public interest."
The right covers three categories of information which are "matters of public concern," namely: (1)
official records; (2) documents and papers pertaining to official acts, transactions and decisions; and
(3) government research data used in formulating policies. The first category refers to any document
that is part of the public records in the custody of government agencies or officials. The second
category refers to documents and papers recording, evidencing, establishing, confirming, supporting,
justifying or explaining official acts, transactions or decisions of government agencies or officials.
The third category refers to research data, whether raw, collated or processed, owned by the
government and used in formulating government policies.
The information that petitioner may access on the renegotiation of the JVA includes evaluation
reports, recommendations, legal and expert opinions, minutes of meetings, terms of reference and
other documents attached to such reports or minutes, all relating to the JVA. However, the right to
information does not compel PEA to prepare lists, abstracts, summaries and the like relating to the
renegotiation of the JVA.
34
The right only affords access to records, documents and papers, which
means the opportunity to inspect and copy them. One who exercises the right must copy the
records, documents and papers at his expense. The exercise of the right is also subject to
reasonable regulations to protect the integrity of the public records and to minimize disruption to
government operations, like rules specifying when and how to conduct the inspection and copying.
35

The right to information, however, does not extend to matters recognized as privileged information
under the separation of powers.
36
The right does not also apply to information on military and
diplomatic secrets, information affecting national security, and information on investigations of
crimes by law enforcement agencies before the prosecution of the accused, which courts have long
recognized as confidential.
37
The right may also be subject to other limitations that Congress may
impose by law.
There is no claim by PEA that the information demanded by petitioner is privileged information
rooted in the separation of powers. The information does not cover Presidential conversations,
correspondences, or discussions during closed-door Cabinet meetings which, like internal
deliberations of the Supreme Court and other collegiate courts, or executive sessions of either house
of Congress,
38
are recognized as confidential. This kind of information cannot be pried open by a co-
equal branch of government. A frank exchange of exploratory ideas and assessments, free from the
glare of publicity and pressure by interested parties, is essential to protect the independence of
decision-making of those tasked to exercise Presidential, Legislative and Judicial power.
39
This is not
the situation in the instant case.
We rule, therefore, that the constitutional right to information includes official information on on-
going negotiationsbefore a final contract. The information, however, must constitute definite
propositions by the government and should not cover recognized exceptions like privileged
information, military and diplomatic secrets and similar matters affecting national security and public
order.
40
Congress has also prescribed other limitations on the right to information in several
legislations.
41

Sixth issue: whether stipulations in the Amended J VA for the transfer to AMARI of lands,
reclaimed or to be reclaimed, violate the Constitution.
The Regalian Doctrine
The ownership of lands reclaimed from foreshore and submerged areas is rooted in the Regalian
doctrine which holds that the State owns all lands and waters of the public domain. Upon the
Spanish conquest of the Philippines, ownership of all "lands, territories and possessions" in the
Philippines passed to the Spanish Crown.
42
The King, as the sovereign ruler and representative of
the people, acquired and owned all lands and territories in the Philippines except those he disposed
of by grant or sale to private individuals.
The 1935, 1973 and 1987 Constitutions adopted the Regalian doctrine substituting, however, the
State, in lieu of the King, as the owner of all lands and waters of the public domain. The Regalian
doctrine is the foundation of the time-honored principle of land ownership that "all lands that were not
acquired from the Government, either by purchase or by grant, belong to the public domain."
43
Article
339 of the Civil Code of 1889, which is now Article 420 of the Civil Code of 1950, incorporated the
Regalian doctrine.
Ownership and Disposition of Reclaimed Lands
The Spanish Law of Waters of 1866 was the first statutory law governing the ownership and
disposition of reclaimed lands in the Philippines. On May 18, 1907, the Philippine Commission
enacted Act No. 1654 which provided for the lease, but not the sale, of reclaimed lands of the
government to corporations and individuals. Later, on November 29, 1919, the Philippine
Legislature approved Act No. 2874, the Public Land Act, which authorized the lease, but not the
sale, of reclaimed lands of the government to corporations and individuals. On November 7,
1936, the National Assembly passed Commonwealth Act No. 141, also known as the Public Land
Act, whichauthorized the lease, but not the sale, of reclaimed lands of the government to
corporations and individuals. CA No. 141 continues to this day as the general law governing the
classification and disposition of lands of the public domain.
The Spanish Law of Waters of 1866 and the Civil Code of 1889
Under the Spanish Law of Waters of 1866, the shores, bays, coves, inlets and all waters within the
maritime zone of the Spanish territory belonged to the public domain for public use.
44
The Spanish
Law of Waters of 1866 allowed the reclamation of the sea under Article 5, which provided as follows:
"Article 5. Lands reclaimed from the sea in consequence of works constructed by the State,
or by the provinces, pueblos or private persons, with proper permission, shall become the
property of the party constructing such works, unless otherwise provided by the terms of the
grant of authority."
Under the Spanish Law of Waters, land reclaimed from the sea belonged to the party undertaking
the reclamation, provided the government issued the necessary permit and did not reserve
ownership of the reclaimed land to the State.
Article 339 of the Civil Code of 1889 defined property of public dominion as follows:
"Art. 339. Property of public dominion is
1. That devoted to public use, such as roads, canals, rivers, torrents, ports and bridges
constructed by the State, riverbanks, shores, roadsteads, and that of a similar character;
2. That belonging exclusively to the State which, without being of general public use, is
employed in some public service, or in the development of the national wealth, such as walls,
fortresses, and other works for the defense of the territory, and mines, until granted to private
individuals."
Property devoted to public use referred to property open for use by the public. In contrast, property
devoted to public service referred to property used for some specific public service and open only to
those authorized to use the property.
Property of public dominion referred not only to property devoted to public use, but also to property
not so used but employed to develop the national wealth. This class of property constituted
property of public dominion although employed for some economic or commercial activity to increase
the national wealth.
Article 341 of the Civil Code of 1889 governed the re-classification of property of public dominion into
private property, to wit:
"Art. 341. Property of public dominion, when no longer devoted to public use or to the
defense of the territory, shall become a part of the private property of the State."
This provision, however, was not self-executing. The legislature, or the executive department
pursuant to law, must declare the property no longer needed for public use or territorial defense
before the government could lease or alienate the property to private parties.
45

Act No. 1654 of the Philippine Commission
On May 8, 1907, the Philippine Commission enacted Act No. 1654 which regulated the lease of
reclaimed and foreshore lands. The salient provisions of this law were as follows:
"Section 1. The control and disposition of the foreshore as defined in existing law, and
the title to all Government or public lands made or reclaimed by the Government by
dredging or filling or otherwise throughout the Philippine Islands, shall be retained by the
Government without prejudice to vested rights and without prejudice to rights conceded to
the City of Manila in the Luneta Extension.
Section 2. (a) The Secretary of the Interior shall cause all Government or public lands made
or reclaimed by the Government by dredging or filling or otherwise to be divided into lots or
blocks, with the necessary streets and alleyways located thereon, and shall cause plats and
plans of such surveys to be prepared and filed with the Bureau of Lands.
(b) Upon completion of such plats and plans the Governor-General shall give notice to the
public that such parts of the lands so made or reclaimed as are not needed for public
purposes will be leased for commercial and business purposes, x x x.
x x x
(e) The leases above provided for shall be disposed of to the highest and best
bidder therefore, subject to such regulations and safeguards as the Governor-General may
by executive order prescribe." (Emphasis supplied)
Act No. 1654 mandated that the government should retain title to all lands reclaimed by the
government. The Act also vested in the government control and disposition of foreshore lands.
Private parties could lease lands reclaimed by the government only if these lands were no longer
needed for public purpose. Act No. 1654 mandatedpublic bidding in the lease of government
reclaimed lands. Act No. 1654 made government reclaimed lands sui generis in that unlike other
public lands which the government could sell to private parties, these reclaimed lands were available
only for lease to private parties.
Act No. 1654, however, did not repeal Section 5 of the Spanish Law of Waters of 1866. Act No. 1654
did not prohibit private parties from reclaiming parts of the sea under Section 5 of the Spanish Law
of Waters. Lands reclaimed from the sea by private parties with government permission remained
private lands.
Act No. 2874 of the Philippine Legislature
On November 29, 1919, the Philippine Legislature enacted Act No. 2874, the Public Land Act.
46
The
salient provisions of Act No. 2874, on reclaimed lands, were as follows:
"Sec. 6. The Governor-General, upon the recommendation of the Secretary of
Agriculture and Natural Resources, shall from time to time classify the lands of the
public domain into
(a) Alienable or disposable,
(b) Timber, and
(c) Mineral lands, x x x.
Sec. 7. For the purposes of the government and disposition of alienable or disposable public
lands, the Governor-General, upon recommendation by the Secretary of Agriculture
and Natural Resources, shall from time to time declare what lands are open to
disposition or concession under this Act."
Sec. 8. Only those lands shall be declared open to disposition or concession which
have been officially delimited or classified x x x.
x x x
Sec. 55. Any tract of land of the public domain which, being neither timber nor mineral land,
shall be classified as suitable for residential purposes or for commercial, industrial, or
other productive purposes other than agricultural purposes, and shall be open to
disposition or concession, shall be disposed of under the provisions of this chapter, and not
otherwise.
Sec. 56. The lands disposable under this title shall be classified as follows:
(a) Lands reclaimed by the Government by dredging, filling, or other means;
(b) Foreshore;
(c) Marshy lands or lands covered with water bordering upon the shores or banks of
navigable lakes or rivers;
(d) Lands not included in any of the foregoing classes.
x x x.
Sec. 58. The lands comprised in classes (a), (b), and (c) of section fifty-six shall be
disposed of to private parties by lease only and not otherwise, as soon as the
Governor-General, upon recommendation by the Secretary of Agriculture and Natural
Resources, shall declare that the same are not necessary for the public service and
are open to disposition under this chapter. The lands included in class (d) may be
disposed of by sale or lease under the provisions of this Act." (Emphasis supplied)
Section 6 of Act No. 2874 authorized the Governor-General to "classify lands of the public domain
into x x x alienable or disposable"
47
lands. Section 7 of the Act empowered the Governor-General to
"declare what lands are open to disposition or concession." Section 8 of the Act limited alienable or
disposable lands only to those lands which have been "officially delimited and classified."
Section 56 of Act No. 2874 stated that lands "disposable under this title
48
shall be classified" as
government reclaimed, foreshore and marshy lands, as well as other lands. All these lands,
however, must be suitable for residential, commercial, industrial or other productive non-
agricultural purposes. These provisions vested upon the Governor-General the power to classify
inalienable lands of the public domain into disposable lands of the public domain. These provisions
also empowered the Governor-General to classify further such disposable lands of the public domain
into government reclaimed, foreshore or marshy lands of the public domain, as well as other non-
agricultural lands.
Section 58 of Act No. 2874 categorically mandated that disposable lands of the public domain
classified as government reclaimed, foreshore and marshy lands "shall be disposed of to private
parties by lease only and not otherwise." The Governor-General, before allowing the lease of
these lands to private parties, must formally declare that the lands were "not necessary for the public
service." Act No. 2874 reiterated the State policy to lease and not to sell government reclaimed,
foreshore and marshy lands of the public domain, a policy first enunciated in 1907 in Act No. 1654.
Government reclaimed, foreshore and marshy lands remained sui generis, as the only alienable or
disposable lands of the public domain that the government could not sell to private parties.
The rationale behind this State policy is obvious. Government reclaimed, foreshore and marshy
public lands for non-agricultural purposes retain their inherent potential as areas for public service.
This is the reason the government prohibited the sale, and only allowed the lease, of these lands to
private parties. The State always reserved these lands for some future public service.
Act No. 2874 did not authorize the reclassification of government reclaimed, foreshore and marshy
lands into other non-agricultural lands under Section 56 (d). Lands falling under Section 56 (d) were
the only lands for non-agricultural purposes the government could sell to private parties. Thus, under
Act No. 2874, the government could not sell government reclaimed, foreshore and marshy lands to
private parties, unless the legislature passed a law allowing their sale.
49

Act No. 2874 did not prohibit private parties from reclaiming parts of the sea pursuant to Section 5 of
the Spanish Law of Waters of 1866. Lands reclaimed from the sea by private parties with
government permission remained private lands.
Dispositions under the 1935 Constitution
On May 14, 1935, the 1935 Constitution took effect upon its ratification by the Filipino people. The
1935 Constitution, in adopting the Regalian doctrine, declared in Section 1, Article XIII, that
"Section 1. All agricultural, timber, and mineral lands of the public domain, waters, minerals,
coal, petroleum, and other mineral oils, all forces of potential energy and other natural
resources of the Philippines belong to the State, and their disposition, exploitation,
development, or utilization shall be limited to citizens of the Philippines or to corporations or
associations at least sixty per centum of the capital of which is owned by such citizens,
subject to any existing right, grant, lease, or concession at the time of the inauguration of the
Government established under this Constitution. Natural resources, with the exception of
public agricultural land, shall not be alienated, and no license, concession, or lease for
the exploitation, development, or utilization of any of the natural resources shall be granted
for a period exceeding twenty-five years, renewable for another twenty-five years, except as
to water rights for irrigation, water supply, fisheries, or industrial uses other than the
development of water power, in which cases beneficial use may be the measure and limit of
the grant." (Emphasis supplied)
The 1935 Constitution barred the alienation of all natural resources except public agricultural lands,
which were the only natural resources the State could alienate. Thus, foreshore lands, considered
part of the State's natural resources, became inalienable by constitutional fiat, available only for
lease for 25 years, renewable for another 25 years. The government could alienate foreshore lands
only after these lands were reclaimed and classified as alienable agricultural lands of the public
domain. Government reclaimed and marshy lands of the public domain, being neither timber nor
mineral lands, fell under the classification of public agricultural lands.
50
However, government
reclaimed and marshy lands, although subject to classification as disposable public agricultural
lands, could only be leased and not sold to private parties because of Act No. 2874.
The prohibition on private parties from acquiring ownership of government reclaimed and marshy
lands of the public domain was only a statutory prohibition and the legislature could therefore
remove such prohibition. The 1935 Constitution did not prohibit individuals and corporations from
acquiring government reclaimed and marshy lands of the public domain that were classified as
agricultural lands under existing public land laws. Section 2, Article XIII of the 1935 Constitution
provided as follows:
"Section 2. No private corporation or association may acquire, lease, or hold public
agricultural lands in excess of one thousand and twenty four hectares, nor may any
individual acquire such lands by purchase in excess of one hundred and forty
hectares, or by lease in excess of one thousand and twenty-four hectares, or by
homestead in excess of twenty-four hectares. Lands adapted to grazing, not exceeding two
thousand hectares, may be leased to an individual, private corporation, or association."
(Emphasis supplied)
Still, after the effectivity of the 1935 Constitution, the legislature did not repeal Section 58 of Act No.
2874 to open for sale to private parties government reclaimed and marshy lands of the public
domain. On the contrary, the legislature continued the long established State policy of retaining for
the government title and ownership of government reclaimed and marshy lands of the public domain.
Commonwealth Act No. 141 of the Philippine National Assembly
On November 7, 1936, the National Assembly approved Commonwealth Act No. 141, also known as
the Public Land Act, which compiled the then existing laws on lands of the public domain. CA No.
141, as amended, remains to this day the existing general law governing the classification and
disposition of lands of the public domain other than timber and mineral lands.
51

Section 6 of CA No. 141 empowers the President to classify lands of the public domain into
"alienable or disposable"
52
lands of the public domain, which prior to such classification are
inalienable and outside the commerce of man. Section 7 of CA No. 141 authorizes the President to
"declare what lands are open to disposition or concession." Section 8 of CA No. 141 states that the
government can declare open for disposition or concession only lands that are "officially delimited
and classified." Sections 6, 7 and 8 of CA No. 141 read as follows:
"Sec. 6. The President, upon the recommendation of the Secretary of Agriculture and
Commerce, shall from time to time classify the lands of the public domain into
(a) Alienable or disposable,
(b) Timber, and
(c) Mineral lands,
and may at any time and in like manner transfer such lands from one class to another,
53
for
the purpose of their administration and disposition.
Sec. 7. For the purposes of the administration and disposition of alienable or disposable
public lands, the President, upon recommendation by the Secretary of Agriculture and
Commerce, shall from time to time declare what lands are open to disposition or
concession under this Act.
Sec. 8. Only those lands shall be declared open to disposition or concession which
have been officially delimited and classified and, when practicable, surveyed, and which
have not been reserved for public or quasi-public uses, nor appropriated by the
Government, nor in any manner become private property, nor those on which a private right
authorized and recognized by this Act or any other valid law may be claimed, or which,
having been reserved or appropriated, have ceased to be so. x x x."
Thus, before the government could alienate or dispose of lands of the public domain, the President
must first officially classify these lands as alienable or disposable, and then declare them open to
disposition or concession. There must be no law reserving these lands for public or quasi-public
uses.
The salient provisions of CA No. 141, on government reclaimed, foreshore and marshy lands of the
public domain, are as follows:
"Sec. 58. Any tract of land of the public domain which, being neither timber nor
mineral land, is intended to be used for residential purposes or for commercial,
industrial, or other productive purposes other than agricultural, and is open to
disposition or concession, shall be disposed of under the provisions of this chapter
and not otherwise.
Sec. 59. The lands disposable under this title shall be classified as follows:
(a) Lands reclaimed by the Government by dredging, filling, or other means;
(b) Foreshore;
(c) Marshy lands or lands covered with water bordering upon the shores or banks of
navigable lakes or rivers;
(d) Lands not included in any of the foregoing classes.
Sec. 60. Any tract of land comprised under this title may be leased or sold, as the case may
be, to any person, corporation, or association authorized to purchase or lease public lands
for agricultural purposes. x x x.
Sec. 61. The lands comprised in classes (a), (b), and (c) of section fifty-nine shall be
disposed of to private parties by lease only and not otherwise, as soon as the
President, upon recommendation by the Secretary of Agriculture, shall declare that the
same are not necessary for the public service and are open to disposition under this
chapter. The lands included in class (d) may be disposed of by sale or lease under the
provisions of this Act." (Emphasis supplied)
Section 61 of CA No. 141 readopted, after the effectivity of the 1935 Constitution, Section 58 of Act
No. 2874 prohibiting the sale of government reclaimed, foreshore and marshy disposable lands of
the public domain. All these lands are intended for residential, commercial, industrial or other non-
agricultural purposes. As before, Section 61 allowed only the lease of such lands to private parties.
The government could sell to private parties only lands falling under Section 59 (d) of CA No. 141, or
those lands for non-agricultural purposes not classified as government reclaimed, foreshore and
marshy disposable lands of the public domain. Foreshore lands, however, became inalienable under
the 1935 Constitution which only allowed the lease of these lands to qualified private parties.
Section 58 of CA No. 141 expressly states that disposable lands of the public domain intended for
residential, commercial, industrial or other productive purposes other than agricultural "shall be
disposed of under the provisions of this chapter and not otherwise." Under Section 10 of CA
No. 141, the term "disposition" includes lease of the land. Any disposition of government reclaimed,
foreshore and marshy disposable lands for non-agricultural purposes must comply with Chapter IX,
Title III of CA No. 141,
54
unless a subsequent law amended or repealed these provisions.
In his concurring opinion in the landmark case of Republic Real Estate Corporation v. Court of
Appeals,
55
Justice Reynato S. Puno summarized succinctly the law on this matter, as follows:
"Foreshore lands are lands of public dominion intended for public use. So too are lands
reclaimed by the government by dredging, filling, or other means. Act 1654 mandated that
the control and disposition of the foreshore and lands under water remained in the national
government. Said law allowed only the 'leasing' of reclaimed land. The Public Land Acts of
1919 and 1936 also declared that the foreshore and lands reclaimed by the government
were to be "disposed of to private parties by lease only and not otherwise." Before leasing,
however, the Governor-General, upon recommendation of the Secretary of Agriculture and
Natural Resources, had first to determine that the land reclaimed was not necessary for the
public service. This requisite must have been met before the land could be disposed of. But
even then, the foreshore and lands under water were not to be alienated and sold to
private parties. The disposition of the reclaimed land was only by lease. The land
remained property of the State." (Emphasis supplied)
As observed by Justice Puno in his concurring opinion, "Commonwealth Act No. 141 has remained
in effect at present."
The State policy prohibiting the sale to private parties of government reclaimed, foreshore and
marshy alienable lands of the public domain, first implemented in 1907 was thus reaffirmed in CA
No. 141 after the 1935 Constitution took effect. The prohibition on the sale of foreshore lands,
however, became a constitutional edict under the 1935 Constitution. Foreshore lands became
inalienable as natural resources of the State, unless reclaimed by the government and classified as
agricultural lands of the public domain, in which case they would fall under the classification of
government reclaimed lands.
After the effectivity of the 1935 Constitution, government reclaimed and marshy disposable lands of
the public domain continued to be only leased and not sold to private parties.
56
These lands
remained sui generis, as the only alienable or disposable lands of the public domain the
government could not sell to private parties.
Since then and until now, the only way the government can sell to private parties government
reclaimed and marshy disposable lands of the public domain is for the legislature to pass a law
authorizing such sale. CA No. 141 does not authorize the President to reclassify government
reclaimed and marshy lands into other non-agricultural lands under Section 59 (d). Lands classified
under Section 59 (d) are the only alienable or disposable lands for non-agricultural purposes that the
government could sell to private parties.
Moreover, Section 60 of CA No. 141 expressly requires congressional authority before lands under
Section 59 that the government previously transferred to government units or entities could be sold
to private parties. Section 60 of CA No. 141 declares that
"Sec. 60. x x x The area so leased or sold shall be such as shall, in the judgment of the
Secretary of Agriculture and Natural Resources, be reasonably necessary for the purposes
for which such sale or lease is requested, and shall not exceed one hundred and forty-four
hectares: Provided, however, That this limitation shall not apply to grants, donations, or
transfers made to a province, municipality or branch or subdivision of the Government for the
purposes deemed by said entities conducive to the public interest; but the land so granted,
donated, or transferred to a province, municipality or branch or subdivision of the
Government shall not be alienated, encumbered, or otherwise disposed of in a manner
affecting its title, except when authorized by Congress: x x x." (Emphasis supplied)
The congressional authority required in Section 60 of CA No. 141 mirrors the legislative authority
required in Section 56 of Act No. 2874.
One reason for the congressional authority is that Section 60 of CA No. 141 exempted government
units and entities from the maximum area of public lands that could be acquired from the State.
These government units and entities should not just turn around and sell these lands to private
parties in violation of constitutional or statutory limitations. Otherwise, the transfer of lands for non-
agricultural purposes to government units and entities could be used to circumvent constitutional
limitations on ownership of alienable or disposable lands of the public domain. In the same manner,
such transfers could also be used to evade the statutory prohibition in CA No. 141 on the sale of
government reclaimed and marshy lands of the public domain to private parties. Section 60 of CA
No. 141 constitutes by operation of law a lien on these lands.
57

In case of sale or lease of disposable lands of the public domain falling under Section 59 of CA No.
141, Sections 63 and 67 require a public bidding. Sections 63 and 67 of CA No. 141 provide as
follows:
"Sec. 63. Whenever it is decided that lands covered by this chapter are not needed for public
purposes, the Director of Lands shall ask the Secretary of Agriculture and Commerce (now
the Secretary of Natural Resources) for authority to dispose of the same. Upon receipt of
such authority, the Director of Lands shall give notice by public advertisement in the same
manner as in the case of leases or sales of agricultural public land, x x x.
Sec. 67. The lease or sale shall be made by oral bidding; and adjudication shall be
made to the highest bidder. x x x." (Emphasis supplied)
Thus, CA No. 141 mandates the Government to put to public auction all leases or sales of alienable
or disposable lands of the public domain.
58

Like Act No. 1654 and Act No. 2874 before it, CA No. 141 did not repeal Section 5 of the Spanish
Law of Waters of 1866. Private parties could still reclaim portions of the sea with government
permission. However, the reclaimed land could become private land only if classified as
alienable agricultural land of the public domain open to disposition under CA No. 141. The 1935
Constitution prohibited the alienation of all natural resources except public agricultural lands.
The Civil Code of 1950
The Civil Code of 1950 readopted substantially the definition of property of public dominion found in
the Civil Code of 1889. Articles 420 and 422 of the Civil Code of 1950 state that
"Art. 420. The following things are property of public dominion:
(1) Those intended for public use, such as roads, canals, rivers, torrents, ports and bridges
constructed by the State, banks, shores, roadsteads, and others of similar character;
(2) Those which belong to the State, without being for public use, and are intended for some
public service or for the development of the national wealth.
x x x.
Art. 422. Property of public dominion, when no longer intended for public use or for public
service, shall form part of the patrimonial property of the State."
Again, the government must formally declare that the property of public dominion is no longer
needed for public use or public service, before the same could be classified as patrimonial property
of the State.
59
In the case of government reclaimed and marshy lands of the public domain, the
declaration of their being disposable, as well as the manner of their disposition, is governed by the
applicable provisions of CA No. 141.
Like the Civil Code of 1889, the Civil Code of 1950 included as property of public dominion those
properties of the State which, without being for public use, are intended for public service or the
"development of the national wealth." Thus, government reclaimed and marshy lands of the State,
even if not employed for public use or public service, if developed to enhance the national wealth,
are classified as property of public dominion.
Dispositions under the 1973 Constitution
The 1973 Constitution, which took effect on January 17, 1973, likewise adopted the Regalian
doctrine. Section 8, Article XIV of the 1973 Constitution stated that
"Sec. 8. All lands of the public domain, waters, minerals, coal, petroleum and other mineral
oils, all forces of potential energy, fisheries, wildlife, and other natural resources of the
Philippines belong to the State. With the exception of agricultural, industrial or
commercial, residential, and resettlement lands of the public domain, natural
resources shall not be alienated, and no license, concession, or lease for the exploration,
development, exploitation, or utilization of any of the natural resources shall be granted for a
period exceeding twenty-five years, renewable for not more than twenty-five years, except as
to water rights for irrigation, water supply, fisheries, or industrial uses other than the
development of water power, in which cases, beneficial use may be the measure and the
limit of the grant." (Emphasis supplied)
The 1973 Constitution prohibited the alienation of all natural resources with the exception of
"agricultural, industrial or commercial, residential, and resettlement lands of the public domain." In
contrast, the 1935 Constitution barred the alienation of all natural resources except "public
agricultural lands." However, the term "public agricultural lands" in the 1935 Constitution
encompassed industrial, commercial, residential and resettlement lands of the public domain.
60
If the
land of public domain were neither timber nor mineral land, it would fall under the classification of
agricultural land of the public domain. Both the 1935 and 1973 Constitutions, therefore,
prohibited the alienation of all natural resources except agricultural lands of the public
domain.
The 1973 Constitution, however, limited the alienation of lands of the public domain to individuals
who were citizens of the Philippines. Private corporations, even if wholly owned by Philippine
citizens, were no longer allowed to acquire alienable lands of the public domain unlike in the 1935
Constitution. Section 11, Article XIV of the 1973 Constitution declared that
"Sec. 11. The Batasang Pambansa, taking into account conservation, ecological, and
development requirements of the natural resources, shall determine by law the size of land
of the public domain which may be developed, held or acquired by, or leased to, any
qualified individual, corporation, or association, and the conditions therefor. No private
corporation or association may hold alienable lands of the public domain except by
lease not to exceed one thousand hectares in area nor may any citizen hold such lands by
lease in excess of five hundred hectares or acquire by purchase, homestead or grant, in
excess of twenty-four hectares. No private corporation or association may hold by lease,
concession, license or permit, timber or forest lands and other timber or forest resources in
excess of one hundred thousand hectares. However, such area may be increased by the
Batasang Pambansa upon recommendation of the National Economic and Development
Authority." (Emphasis supplied)
Thus, under the 1973 Constitution, private corporations could hold alienable lands of the public
domain only through lease. Only individuals could now acquire alienable lands of the public domain,
and private corporations became absolutely barred from acquiring any kind of alienable land
of the public domain. The constitutional ban extended to all kinds of alienable lands of the public
domain, while the statutory ban under CA No. 141 applied only to government reclaimed, foreshore
and marshy alienable lands of the public domain.
PD No. 1084 Creating the Public Estates Authority
On February 4, 1977, then President Ferdinand Marcos issued Presidential Decree No. 1084
creating PEA, a wholly government owned and controlled corporation with a special charter.
Sections 4 and 8 of PD No. 1084, vests PEA with the following purposes and powers:
"Sec. 4. Purpose. The Authority is hereby created for the following purposes:
(a) To reclaim land, including foreshore and submerged areas, by dredging, filling or
other means, or to acquire reclaimed land;
(b) To develop, improve, acquire, administer, deal in, subdivide, dispose, lease and sell any
and all kinds of lands, buildings, estates and other forms of real property, owned,
managed, controlled and/or operated by the government;
(c) To provide for, operate or administer such service as may be necessary for the efficient,
economical and beneficial utilization of the above properties.
Sec. 5. Powers and functions of the Authority. The Authority shall, in carrying out the
purposes for which it is created, have the following powers and functions:
(a)To prescribe its by-laws.
x x x
(i) To hold lands of the public domain in excess of the area permitted to private
corporations by statute.
(j) To reclaim lands and to construct work across, or otherwise, any stream, watercourse,
canal, ditch, flume x x x.
x x x
(o) To perform such acts and exercise such functions as may be necessary for the
attainment of the purposes and objectives herein specified." (Emphasis supplied)
PD No. 1084 authorizes PEA to reclaim both foreshore and submerged areas of the public domain.
Foreshore areas are those covered and uncovered by the ebb and flow of the tide.
61
Submerged
areas are those permanently under water regardless of the ebb and flow of the tide.
62
Foreshore and
submerged areas indisputably belong to the public domain
63
and are inalienable unless reclaimed,
classified as alienable lands open to disposition, and further declared no longer needed for public
service.
The ban in the 1973 Constitution on private corporations from acquiring alienable lands of the public
domain did not apply to PEA since it was then, and until today, a fully owned government
corporation. The constitutional ban applied then, as it still applies now, only to "private corporations
and associations." PD No. 1084 expressly empowers PEA "to hold lands of the public domain"
even "in excess of the area permitted to private corporations by statute." Thus, PEA can hold title
to private lands, as well as title to lands of the public domain.
In order for PEA to sell its reclaimed foreshore and submerged alienable lands of the public domain,
there must be legislative authority empowering PEA to sell these lands. This legislative authority is
necessary in view of Section 60 of CA No.141, which states
"Sec. 60. x x x; but the land so granted, donated or transferred to a province, municipality, or
branch or subdivision of the Government shall not be alienated, encumbered or otherwise
disposed of in a manner affecting its title, except when authorized by Congress; x x x."
(Emphasis supplied)
Without such legislative authority, PEA could not sell but only lease its reclaimed foreshore and
submerged alienable lands of the public domain. Nevertheless, any legislative authority granted to
PEA to sell its reclaimed alienable lands of the public domain would be subject to the constitutional
ban on private corporations from acquiring alienable lands of the public domain. Hence, such
legislative authority could only benefit private individuals.
Dispositions under the 1987 Constitution
The 1987 Constitution, like the 1935 and 1973 Constitutions before it, has adopted the Regalian
doctrine. The 1987 Constitution declares that all natural resources are "owned by the State," and
except for alienable agricultural lands of the public domain, natural resources cannot be alienated.
Sections 2 and 3, Article XII of the 1987 Constitution state that
"Section 2. All lands of the public domain, waters, minerals, coal, petroleum and other
mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and
fauna, and other natural resources are owned by the State. With the exception of
agricultural lands, all other natural resources shall not be alienated. The exploration,
development, and utilization of natural resources shall be under the full control and
supervision of the State. x x x.
Section 3. Lands of the public domain are classified into agricultural, forest or timber, mineral
lands, and national parks. Agricultural lands of the public domain may be further classified by
law according to the uses which they may be devoted. Alienable lands of the public
domain shall be limited to agricultural lands. Private corporations or associations may
not hold such alienable lands of the public domain except by lease, for a period not
exceeding twenty-five years, renewable for not more than twenty-five years, and not to
exceed one thousand hectares in area. Citizens of the Philippines may lease not more
than five hundred hectares, or acquire not more than twelve hectares thereof by purchase,
homestead, or grant.
Taking into account the requirements of conservation, ecology, and development, and
subject to the requirements of agrarian reform, the Congress shall determine, by law, the
size of lands of the public domain which may be acquired, developed, held, or leased and
the conditions therefor." (Emphasis supplied)
The 1987 Constitution continues the State policy in the 1973 Constitution banning private
corporations fromacquiring any kind of alienable land of the public domain. Like the 1973
Constitution, the 1987 Constitution allows private corporations to hold alienable lands of the public
domain only through lease. As in the 1935 and 1973 Constitutions, the general law governing the
lease to private corporations of reclaimed, foreshore and marshy alienable lands of the public
domain is still CA No. 141.
The Rationale behind the Constitutional Ban
The rationale behind the constitutional ban on corporations from acquiring, except through lease,
alienable lands of the public domain is not well understood. During the deliberations of the 1986
Constitutional Commission, the commissioners probed the rationale behind this ban, thus:
"FR. BERNAS: Mr. Vice-President, my questions have reference to page 3, line 5 which
says:
`No private corporation or association may hold alienable lands of the public domain except
by lease, not to exceed one thousand hectares in area.'
If we recall, this provision did not exist under the 1935 Constitution, but this was introduced
in the 1973 Constitution. In effect, it prohibits private corporations from acquiring alienable
public lands. But it has not been very clear in jurisprudence what the reason for this is.
In some of the cases decided in 1982 and 1983, it was indicated that the purpose of this
is to prevent large landholdings. Is that the intent of this provision?
MR. VILLEGAS: I think that is the spirit of the provision.
FR. BERNAS: In existing decisions involving the Iglesia ni Cristo, there were instances
where the Iglesia ni Cristo was not allowed to acquire a mere 313-square meter land where a
chapel stood because the Supreme Court said it would be in violation of this." (Emphasis
supplied)
In Ayog v. Cusi,
64
the Court explained the rationale behind this constitutional ban in this way:
"Indeed, one purpose of the constitutional prohibition against purchases of public agricultural
lands by private corporations is to equitably diffuse land ownership or to encourage 'owner-
cultivatorship and the economic family-size farm' and to prevent a recurrence of cases like
the instant case. Huge landholdings by corporations or private persons had spawned social
unrest."
However, if the constitutional intent is to prevent huge landholdings, the Constitution could have
simply limited the size of alienable lands of the public domain that corporations could acquire. The
Constitution could have followed the limitations on individuals, who could acquire not more than 24
hectares of alienable lands of the public domain under the 1973 Constitution, and not more than 12
hectares under the 1987 Constitution.
If the constitutional intent is to encourage economic family-size farms, placing the land in the name
of a corporation would be more effective in preventing the break-up of farmlands. If the farmland is
registered in the name of a corporation, upon the death of the owner, his heirs would inherit shares
in the corporation instead of subdivided parcels of the farmland. This would prevent the continuing
break-up of farmlands into smaller and smaller plots from one generation to the next.
In actual practice, the constitutional ban strengthens the constitutional limitation on individuals from
acquiring more than the allowed area of alienable lands of the public domain. Without the
constitutional ban, individuals who already acquired the maximum area of alienable lands of the
public domain could easily set up corporations to acquire more alienable public lands. An individual
could own as many corporations as his means would allow him. An individual could even hide his
ownership of a corporation by putting his nominees as stockholders of the corporation. The
corporation is a convenient vehicle to circumvent the constitutional limitation on acquisition by
individuals of alienable lands of the public domain.
The constitutional intent, under the 1973 and 1987 Constitutions, is to transfer ownership of only a
limited area of alienable land of the public domain to a qualified individual. This constitutional intent
is safeguarded by the provision prohibiting corporations from acquiring alienable lands of the public
domain, since the vehicle to circumvent the constitutional intent is removed. The available alienable
public lands are gradually decreasing in the face of an ever-growing population. The most effective
way to insure faithful adherence to this constitutional intent is to grant or sell alienable lands of the
public domain only to individuals. This, it would seem, is the practical benefit arising from the
constitutional ban.
The Amended J oint Venture Agreement
The subject matter of the Amended JVA, as stated in its second Whereas clause, consists of three
properties, namely:
1. "[T]hree partially reclaimed and substantially eroded islands along Emilio Aguinaldo
Boulevard in Paranaque and Las Pinas, Metro Manila, with a combined titled area of
1,578,441 square meters;"
2. "[A]nother area of 2,421,559 square meters contiguous to the three islands;" and
3. "[A]t AMARI's option as approved by PEA, an additional 350 hectares more or less to
regularize the configuration of the reclaimed area."
65

PEA confirms that the Amended JVA involves "the development of the Freedom Islands and further
reclamation of about 250 hectares x x x," plus an option "granted to AMARI to subsequently reclaim
another 350 hectares x x x."
66

In short, the Amended JVA covers a reclamation area of 750 hectares. Only 157.84 hectares of the
750-hectare reclamation project have been reclaimed, and the rest of the 592.15 hectares are
still submerged areas forming part of Manila Bay.
Under the Amended JVA, AMARI will reimburse PEA the sum of P1,894,129,200.00 for PEA's
"actual cost" in partially reclaiming the Freedom Islands. AMARI will also complete, at its own
expense, the reclamation of the Freedom Islands. AMARI will further shoulder all the reclamation
costs of all the other areas, totaling 592.15 hectares, still to be reclaimed. AMARI and PEA will
share, in the proportion of 70 percent and 30 percent, respectively, the total net usable area which is
defined in the Amended JVA as the total reclaimed area less 30 percent earmarked for common
areas. Title to AMARI's share in the net usable area, totaling 367.5 hectares, will be issued in the
name of AMARI. Section 5.2 (c) of the Amended JVA provides that
"x x x, PEA shall have the duty to execute without delay the necessary deed of transfer or
conveyance of the title pertaining to AMARI's Land share based on the Land Allocation
Plan. PEA, when requested in writing by AMARI, shall then cause the issuance and
delivery of the proper certificates of title covering AMARI's Land Share in the name of
AMARI, x x x; provided, that if more than seventy percent (70%) of the titled area at any
given time pertains to AMARI, PEA shall deliver to AMARI only seventy percent (70%) of the
titles pertaining to AMARI, until such time when a corresponding proportionate area of
additional land pertaining to PEA has been titled." (Emphasis supplied)
Indisputably, under the Amended J VA AMARI will acquire and own a maximum of 367.5
hectares of reclaimed land which will be titled in its name.
To implement the Amended JVA, PEA delegated to the unincorporated PEA-AMARI joint venture
PEA's statutory authority, rights and privileges to reclaim foreshore and submerged areas in Manila
Bay. Section 3.2.a of the Amended JVA states that
"PEA hereby contributes to the joint venture its rights and privileges to perform Rawland
Reclamation and Horizontal Development as well as own the Reclamation Area, thereby
granting the Joint Venture the full and exclusive right, authority and privilege to undertake the
Project in accordance with the Master Development Plan."
The Amended JVA is the product of a renegotiation of the original JVA dated April 25, 1995 and its
supplemental agreement dated August 9, 1995.
The Threshold Issue
The threshold issue is whether AMARI, a private corporation, can acquire and own under the
Amended JVA 367.5 hectares of reclaimed foreshore and submerged areas in Manila Bay in view of
Sections 2 and 3, Article XII of the 1987 Constitution which state that:
"Section 2. All lands of the public domain, waters, minerals, coal, petroleum, and other
mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and
fauna, and other natural resources are owned by the State. With the exception of
agricultural lands, all other natural resources shall not be alienated. x x x.
x x x
Section 3. x x x Alienable lands of the public domain shall be limited to agricultural
lands. Private corporations or associations may not hold such alienable lands of the
public domain except by lease, x x x."(Emphasis supplied)
Classification of Reclaimed Foreshore and Submerged Areas
PEA readily concedes that lands reclaimed from foreshore or submerged areas of Manila Bay are
alienable or disposable lands of the public domain. In its Memorandum,
67
PEA admits that
"Under the Public Land Act (CA 141, as amended), reclaimed lands are classified as
alienable and disposable lands of the public domain:
'Sec. 59. The lands disposable under this title shall be classified as follows:
(a) Lands reclaimed by the government by dredging, filling, or other means;
x x x.'" (Emphasis supplied)
Likewise, the Legal Task Force
68
constituted under Presidential Administrative Order No. 365
admitted in its Report and Recommendation to then President Fidel V. Ramos, "[R]eclaimed lands
are classified as alienable and disposable lands of the public domain."
69
The Legal Task Force
concluded that
"D. Conclusion
Reclaimed lands are lands of the public domain. However, by statutory authority, the rights of
ownership and disposition over reclaimed lands have been transferred to PEA, by virtue of
which PEA, as owner, may validly convey the same to any qualified person without violating
the Constitution or any statute.
The constitutional provision prohibiting private corporations from holding public land, except
by lease (Sec. 3, Art. XVII,
70
1987 Constitution), does not apply to reclaimed lands whose
ownership has passed on to PEA by statutory grant."
Under Section 2, Article XII of the 1987 Constitution, the foreshore and submerged areas of Manila
Bay are part of the "lands of the public domain, waters x x x and other natural resources" and
consequently "owned by the State." As such, foreshore and submerged areas "shall not be
alienated," unless they are classified as "agricultural lands" of the public domain. The mere
reclamation of these areas by PEA does not convert these inalienable natural resources of the State
into alienable or disposable lands of the public domain. There must be a law or presidential
proclamation officially classifying these reclaimed lands as alienable or disposable and open to
disposition or concession. Moreover, these reclaimed lands cannot be classified as alienable or
disposable if the law has reserved them for some public or quasi-public use.
71

Section 8 of CA No. 141 provides that "only those lands shall be declared open to disposition or
concession which have been officially delimited and classified."
72
The President has the authority
to classify inalienable lands of the public domain into alienable or disposable lands of the public
domain, pursuant to Section 6 of CA No. 141. In Laurel vs. Garcia,
73
the Executive Department
attempted to sell the Roppongi property in Tokyo, Japan, which was acquired by the Philippine
Government for use as the Chancery of the Philippine Embassy. Although the Chancery had
transferred to another location thirteen years earlier, the Court still ruled that, under Article 422
74
of
the Civil Code, a property of public dominion retains such character until formally declared
otherwise. The Court ruled that
"The fact that the Roppongi site has not been used for a long time for actual Embassy
service does not automatically convert it to patrimonial property. Any such conversion
happens only if the property is withdrawn from public use (Cebu Oxygen and Acetylene Co.
v. Bercilles, 66 SCRA 481 [1975]. A property continues to be part of the public domain,
not available for private appropriation or ownership 'until there is a formal declaration
on the part of the government to withdraw it from being such' (Ignacio v. Director of
Lands, 108 Phil. 335 [1960]." (Emphasis supplied)
PD No. 1085, issued on February 4, 1977, authorized the issuance of special land patents for lands
reclaimed by PEA from the foreshore or submerged areas of Manila Bay. On January 19, 1988 then
President Corazon C. Aquino issued Special Patent No. 3517 in the name of PEA for the 157.84
hectares comprising the partially reclaimed Freedom Islands. Subsequently, on April 9, 1999 the
Register of Deeds of the Municipality of Paranaque issued TCT Nos. 7309, 7311 and 7312 in the
name of PEA pursuant to Section 103 of PD No. 1529 authorizing the issuance of certificates of title
corresponding to land patents. To this day, these certificates of title are still in the name of PEA.
PD No. 1085, coupled with President Aquino's actual issuance of a special patent covering the
Freedom Islands, is equivalent to an official proclamation classifying the Freedom Islands as
alienable or disposable lands of the public domain. PD No. 1085 and President Aquino's issuance of
a land patent also constitute a declaration that the Freedom Islands are no longer needed for public
service. The Freedom Islands are thus alienable or disposable lands of the public domain,
open to disposition or concession to qualified parties.
At the time then President Aquino issued Special Patent No. 3517, PEA had already reclaimed the
Freedom Islands although subsequently there were partial erosions on some areas. The government
had also completed the necessary surveys on these islands. Thus, the Freedom Islands were no
longer part of Manila Bay but part of the land mass. Section 3, Article XII of the 1987 Constitution
classifies lands of the public domain into "agricultural, forest or timber, mineral lands, and national
parks." Being neither timber, mineral, nor national park lands, the reclaimed Freedom Islands
necessarily fall under the classification of agricultural lands of the public domain. Under the 1987
Constitution, agricultural lands of the public domain are the only natural resources that the State may
alienate to qualified private parties. All other natural resources, such as the seas or bays, are
"waters x x x owned by the State" forming part of the public domain, and are inalienable pursuant to
Section 2, Article XII of the 1987 Constitution.
AMARI claims that the Freedom Islands are private lands because CDCP, then a private
corporation, reclaimed the islands under a contract dated November 20, 1973 with the
Commissioner of Public Highways. AMARI, citing Article 5 of the Spanish Law of Waters of 1866,
argues that "if the ownership of reclaimed lands may be given to the party constructing the works,
then it cannot be said that reclaimed lands are lands of the public domain which the State may not
alienate."
75
Article 5 of the Spanish Law of Waters reads as follows:
"Article 5. Lands reclaimed from the sea in consequence of works constructed by the State,
or by the provinces, pueblos or private persons, with proper permission, shall become the
property of the party constructing such works, unless otherwise provided by the terms of
the grant of authority." (Emphasis supplied)
Under Article 5 of the Spanish Law of Waters of 1866, private parties could reclaim from the sea only
with "proper permission" from the State. Private parties could own the reclaimed land only if not
"otherwise provided by the terms of the grant of authority." This clearly meant that no one could
reclaim from the sea without permission from the State because the sea is property of public
dominion. It also meant that the State could grant or withhold ownership of the reclaimed land
because any reclaimed land, like the sea from which it emerged, belonged to the State. Thus, a
private person reclaiming from the sea without permission from the State could not acquire
ownership of the reclaimed land which would remain property of public dominion like the sea it
replaced.
76
Article 5 of the Spanish Law of Waters of 1866 adopted the time-honored principle of
land ownership that "all lands that were not acquired from the government, either by purchase or by
grant, belong to the public domain."
77

Article 5 of the Spanish Law of Waters must be read together with laws subsequently enacted on the
disposition of public lands. In particular, CA No. 141 requires that lands of the public domain must
first be classified as alienable or disposable before the government can alienate them. These lands
must not be reserved for public or quasi-public purposes.
78
Moreover, the contract between CDCP
and the government was executed after the effectivity of the 1973 Constitution which barred private
corporations from acquiring any kind of alienable land of the public domain. This contract could not
have converted the Freedom Islands into private lands of a private corporation.
Presidential Decree No. 3-A, issued on January 11, 1973, revoked all laws authorizing the
reclamation of areas under water and revested solely in the National Government the power to
reclaim lands. Section 1 of PD No. 3-A declared that
"The provisions of any law to the contrary notwithstanding, the reclamation of areas
under water, whether foreshore or inland, shall be limited to the National Government or
any person authorized by it under a proper contract. (Emphasis supplied)
x x x."
PD No. 3-A repealed Section 5 of the Spanish Law of Waters of 1866 because reclamation of areas
under water could now be undertaken only by the National Government or by a person contracted by
the National Government. Private parties may reclaim from the sea only under a contract with the
National Government, and no longer by grant or permission as provided in Section 5 of the Spanish
Law of Waters of 1866.
Executive Order No. 525, issued on February 14, 1979, designated PEA as the National
Government's implementing arm to undertake "all reclamation projects of the government," which
"shall be undertaken by the PEA or through a proper contract executed by it with any person
or entity." Under such contract, a private party receives compensation for reclamation services
rendered to PEA. Payment to the contractor may be in cash, or in kind consisting of portions of the
reclaimed land, subject to the constitutional ban on private corporations from acquiring alienable
lands of the public domain. The reclaimed land can be used as payment in kind only if the reclaimed
land is first classified as alienable or disposable land open to disposition, and then declared no
longer needed for public service.
The Amended JVA covers not only the Freedom Islands, but also an additional 592.15 hectares
which are still submerged and forming part of Manila Bay. There is no legislative or Presidential
act classifying these submerged areas as alienable or disposable lands of the public domain
open to disposition. These submerged areas are not covered by any patent or certificate of title.
There can be no dispute that these submerged areas form part of the public domain, and in their
present state are inalienable and outside the commerce of man. Until reclaimed from the sea,
these submerged areas are, under the Constitution, "waters x x x owned by the State," forming part
of the public domain and consequently inalienable. Only when actually reclaimed from the sea can
these submerged areas be classified as public agricultural lands, which under the Constitution are
the only natural resources that the State may alienate. Once reclaimed and transformed into public
agricultural lands, the government may then officially classify these lands as alienable or disposable
lands open to disposition. Thereafter, the government may declare these lands no longer needed for
public service. Only then can these reclaimed lands be considered alienable or disposable lands of
the public domain and within the commerce of man.
The classification of PEA's reclaimed foreshore and submerged lands into alienable or disposable
lands open to disposition is necessary because PEA is tasked under its charter to undertake public
services that require the use of lands of the public domain. Under Section 5 of PD No. 1084, the
functions of PEA include the following: "[T]o own or operate railroads, tramways and other kinds of
land transportation, x x x; [T]o construct, maintain and operate such systems of sanitary sewers as
may be necessary; [T]o construct, maintain and operate such storm drains as may be necessary."
PEA is empowered to issue "rules and regulations as may be necessary for the proper use by
private parties of any or all of the highways, roads, utilities, buildings and/or any of its
properties and to impose or collect fees or tolls for their use." Thus, part of the reclaimed foreshore
and submerged lands held by the PEA would actually be needed for public use or service since
many of the functions imposed on PEA by its charter constitute essential public services.
Moreover, Section 1 of Executive Order No. 525 provides that PEA "shall be primarily responsible for
integrating, directing, and coordinating all reclamation projects for and on behalf of the National
Government." The same section also states that "[A]ll reclamation projects shall be approved by the
President upon recommendation of the PEA, and shall be undertaken by the PEA or through a
proper contract executed by it with any person or entity; x x x." Thus, under EO No. 525, in relation
to PD No. 3-A and PD No.1084, PEA became the primary implementing agency of the National
Government to reclaim foreshore and submerged lands of the public domain. EO No. 525
recognized PEA as the government entity "to undertake the reclamation of lands and ensure their
maximum utilization inpromoting public welfare and interests."
79
Since large portions of these
reclaimed lands would obviously be needed for public service, there must be a formal declaration
segregating reclaimed lands no longer needed for public service from those still needed for public
service.1wphi 1.nt
Section 3 of EO No. 525, by declaring that all lands reclaimed by PEA "shall belong to or be owned
by the PEA," could not automatically operate to classify inalienable lands into alienable or disposable
lands of the public domain. Otherwise, reclaimed foreshore and submerged lands of the public
domain would automatically become alienable once reclaimed by PEA, whether or not classified as
alienable or disposable.
The Revised Administrative Code of 1987, a later law than either PD No. 1084 or EO No. 525, vests
in the Department of Environment and Natural Resources ("DENR" for brevity) the following powers
and functions:
"Sec. 4. Powers and Functions. The Department shall:
(1) x x x
x x x
(4) Exercise supervision and control over forest lands, alienable and disposable public
lands, mineral resources and, in the process of exercising such control, impose appropriate
taxes, fees, charges, rentals and any such form of levy and collect such revenues for the
exploration, development, utilization or gathering of such resources;
x x x
(14) Promulgate rules, regulations and guidelines on the issuance of licenses,
permits, concessions, lease agreements and such other privileges concerning the
development, exploration and utilization of the country's marine, freshwater, and
brackish water and over all aquatic resources of the country and shall continue to
oversee, supervise and police our natural resources; cancel or cause to cancel such
privileges upon failure, non-compliance or violations of any regulation, order, and for all other
causes which are in furtherance of the conservation of natural resources and supportive of
the national interest;
(15) Exercise exclusive jurisdiction on the management and disposition of all lands of
the public domain and serve as the sole agency responsible for classification, sub-
classification, surveying and titling of lands in consultation with appropriate
agencies."
80
(Emphasis supplied)
As manager, conservator and overseer of the natural resources of the State, DENR exercises
"supervision and control over alienable and disposable public lands." DENR also exercises
"exclusive jurisdiction on the management and disposition of all lands of the public domain." Thus,
DENR decides whether areas under water, like foreshore or submerged areas of Manila Bay, should
be reclaimed or not. This means that PEA needs authorization from DENR before PEA can
undertake reclamation projects in Manila Bay, or in any part of the country.
DENR also exercises exclusive jurisdiction over the disposition of all lands of the public domain.
Hence, DENR decides whether reclaimed lands of PEA should be classified as alienable under
Sections 6
81
and 7
82
of CA No. 141. Once DENR decides that the reclaimed lands should be so
classified, it then recommends to the President the issuance of a proclamation classifying the lands
as alienable or disposable lands of the public domain open to disposition. We note that then DENR
Secretary Fulgencio S. Factoran, Jr. countersigned Special Patent No. 3517 in compliance with the
Revised Administrative Code and Sections 6 and 7 of CA No. 141.
In short, DENR is vested with the power to authorize the reclamation of areas under water, while
PEA is vested with the power to undertake the physical reclamation of areas under water, whether
directly or through private contractors. DENR is also empowered to classify lands of the public
domain into alienable or disposable lands subject to the approval of the President. On the other
hand, PEA is tasked to develop, sell or lease the reclaimed alienable lands of the public domain.
Clearly, the mere physical act of reclamation by PEA of foreshore or submerged areas does not
make the reclaimed lands alienable or disposable lands of the public domain, much less patrimonial
lands of PEA. Likewise, the mere transfer by the National Government of lands of the public domain
to PEA does not make the lands alienable or disposable lands of the public domain, much less
patrimonial lands of PEA.
Absent two official acts a classification that these lands are alienable or disposable and open to
disposition and a declaration that these lands are not needed for public service, lands reclaimed by
PEA remain inalienable lands of the public domain. Only such an official classification and formal
declaration can convert reclaimed lands into alienable or disposable lands of the public domain,
open to disposition under the Constitution, Title I and Title III
83
of CA No. 141 and other applicable
laws.
84

PEA's Authority to Sell Reclaimed Lands
PEA, like the Legal Task Force, argues that as alienable or disposable lands of the public domain,
the reclaimed lands shall be disposed of in accordance with CA No. 141, the Public Land Act. PEA,
citing Section 60 of CA No. 141, admits that reclaimed lands transferred to a branch or subdivision of
the government "shall not be alienated, encumbered, or otherwise disposed of in a manner affecting
its title, except when authorized by Congress: x x x."
85
(Emphasis by PEA)
In Laurel vs. Garcia,
86
the Court cited Section 48 of the Revised Administrative Code of 1987, which
states that
"Sec. 48. Official Authorized to Convey Real Property. Whenever real property of the
Government is authorized by law to be conveyed, the deed of conveyance shall be
executed in behalf of the government by the following: x x x."
Thus, the Court concluded that a law is needed to convey any real property belonging to the
Government. The Court declared that -
"It is not for the President to convey real property of the government on his or her own sole
will. Any such conveyance must be authorized and approved by a law enacted by the
Congress. It requires executive and legislative concurrence." (Emphasis supplied)
PEA contends that PD No. 1085 and EO No. 525 constitute the legislative authority allowing PEA to
sell its reclaimed lands. PD No. 1085, issued on February 4, 1977, provides that
"The land reclaimed in the foreshore and offshore area of Manila Bay pursuant to the
contract for the reclamation and construction of the Manila-Cavite Coastal Road Project
between the Republic of the Philippines and the Construction and Development Corporation
of the Philippines dated November 20, 1973 and/or any other contract or reclamation
covering the same area is hereby transferred, conveyed and assigned to the ownership
and administration of the Public Estates Authority established pursuant to PD No. 1084;
Provided, however, That the rights and interests of the Construction and Development
Corporation of the Philippines pursuant to the aforesaid contract shall be recognized and
respected.
Henceforth, the Public Estates Authority shall exercise the rights and assume the obligations
of the Republic of the Philippines (Department of Public Highways) arising from, or incident
to, the aforesaid contract between the Republic of the Philippines and the Construction and
Development Corporation of the Philippines.
In consideration of the foregoing transfer and assignment, the Public Estates Authority shall
issue in favor of the Republic of the Philippines the corresponding shares of stock in said
entity with an issued value of said shares of stock (which) shall be deemed fully paid and
non-assessable.
The Secretary of Public Highways and the General Manager of the Public Estates Authority
shall execute such contracts or agreements, including appropriate agreements with the
Construction and Development Corporation of the Philippines, as may be necessary to
implement the above.
Special land patent/patents shall be issued by the Secretary of Natural Resources in
favor of the Public Estates Authority without prejudice to the subsequent transfer to
the contractor or his assignees of such portion or portions of the land reclaimed or to
be reclaimed as provided for in the above-mentioned contract. On the basis of such
patents, the Land Registration Commission shall issue the corresponding certificate
of title." (Emphasis supplied)
On the other hand, Section 3 of EO No. 525, issued on February 14, 1979, provides that -
"Sec. 3. All lands reclaimed by PEA shall belong to or be owned by the PEA which shall
be responsible for its administration, development, utilization or disposition in accordance
with the provisions of Presidential Decree No. 1084. Any and all income that the PEA may
derive from the sale, lease or use of reclaimed lands shall be used in accordance with the
provisions of Presidential Decree No. 1084."
There is no express authority under either PD No. 1085 or EO No. 525 for PEA to sell its reclaimed
lands. PD No. 1085 merely transferred "ownership and administration" of lands reclaimed from
Manila Bay to PEA, while EO No. 525 declared that lands reclaimed by PEA "shall belong to or be
owned by PEA." EO No. 525 expressly states that PEA should dispose of its reclaimed lands "in
accordance with the provisions of Presidential Decree No. 1084," the charter of PEA.
PEA's charter, however, expressly tasks PEA "to develop, improve, acquire, administer, deal in,
subdivide, dispose, lease and sell any and all kinds of lands x x x owned, managed, controlled
and/or operated by the government."
87
(Emphasis supplied) There is, therefore, legislative
authority granted to PEA to sell its lands, whether patrimonial or alienable lands of the public
domain. PEA may sell to private parties its patrimonial propertiesin accordance with the PEA
charter free from constitutional limitations. The constitutional ban on private corporations from
acquiring alienable lands of the public domain does not apply to the sale of PEA's patrimonial lands.
PEA may also sell its alienable or disposable lands of the public domain to private individuals
since, with the legislative authority, there is no longer any statutory prohibition against such sales
and the constitutional ban does not apply to individuals. PEA, however, cannot sell any of its
alienable or disposable lands of the public domain to private corporations since Section 3, Article XII
of the 1987 Constitution expressly prohibits such sales. The legislative authority benefits only
individuals. Private corporations remain barred from acquiring any kind of alienable land of the public
domain, including government reclaimed lands.
The provision in PD No. 1085 stating that portions of the reclaimed lands could be transferred by
PEA to the "contractor or his assignees" (Emphasis supplied) would not apply to private corporations
but only to individuals because of the constitutional ban. Otherwise, the provisions of PD No. 1085
would violate both the 1973 and 1987 Constitutions.
The requirement of public auction in the sale of reclaimed lands
Assuming the reclaimed lands of PEA are classified as alienable or disposable lands open to
disposition, and further declared no longer needed for public service, PEA would have to conduct a
public bidding in selling or leasing these lands. PEA must observe the provisions of Sections 63 and
67 of CA No. 141 requiring public auction, in the absence of a law exempting PEA from holding a
public auction.
88
Special Patent No. 3517 expressly states that the patent is issued by authority of
the Constitution and PD No. 1084, "supplemented by Commonwealth Act No. 141, as amended."
This is an acknowledgment that the provisions of CA No. 141 apply to the disposition of reclaimed
alienable lands of the public domain unless otherwise provided by law. Executive Order No.
654,
89
which authorizes PEA "to determine the kind and manner of payment for the transfer" of its
assets and properties, does not exempt PEA from the requirement of public auction. EO No. 654
merely authorizes PEA to decide the mode of payment, whether in kind and in installment, but does
not authorize PEA to dispense with public auction.
Moreover, under Section 79 of PD No. 1445, otherwise known as the Government Auditing Code,
the government is required to sell valuable government property through public bidding. Section 79
of PD No. 1445 mandates that
"Section 79. When government property has become unserviceable for any cause, or is no
longer needed, it shall, upon application of the officer accountable therefor, be inspected by
the head of the agency or his duly authorized representative in the presence of the auditor
concerned and, if found to be valueless or unsaleable, it may be destroyed in their
presence. If found to be valuable, it may be sold at public auction to the highest
bidder under the supervision of the proper committee on award or similar body in the
presence of the auditor concerned or other authorized representative of the
Commission, after advertising by printed notice in the Official Gazette, or for not less
than three consecutive days in any newspaper of general circulation, or where the
value of the property does not warrant the expense of publication, by notices posted for a like
period in at least three public places in the locality where the property is to be sold. In the
event that the public auction fails, the property may be sold at a private sale at such
price as may be fixed by the same committee or body concerned and approved by the
Commission."
It is only when the public auction fails that a negotiated sale is allowed, in which case the
Commission on Audit must approve the selling price.
90
The Commission on Audit implements
Section 79 of the Government Auditing Code through Circular No. 89-296
91
dated January 27, 1989.
This circular emphasizes that government assets must be disposed of only through public auction,
and a negotiated sale can be resorted to only in case of "failure of public auction."
At the public auction sale, only Philippine citizens are qualified to bid for PEA's reclaimed foreshore
and submerged alienable lands of the public domain. Private corporations are barred from bidding at
the auction sale of any kind of alienable land of the public domain.
PEA originally scheduled a public bidding for the Freedom Islands on December 10, 1991. PEA
imposed a condition that the winning bidder should reclaim another 250 hectares of submerged
areas to regularize the shape of the Freedom Islands, under a 60-40 sharing of the additional
reclaimed areas in favor of the winning bidder.
92
No one, however, submitted a bid. On December
23, 1994, the Government Corporate Counsel advised PEA it could sell the Freedom Islands
through negotiation, without need of another public bidding, because of the failure of the public
bidding on December 10, 1991.
93

However, the original JVA dated April 25, 1995 covered not only the Freedom Islands and the
additional 250 hectares still to be reclaimed, it also granted an option to AMARI to reclaim another
350 hectares. The original JVA, a negotiated contract, enlarged the reclamation area to 750
hectares.
94
The failure of public bidding on December 10, 1991, involving only 407.84 hectares,
95
is
not a valid justification for a negotiated sale of 750 hectares, almost double the area publicly
auctioned. Besides, the failure of public bidding happened on December 10, 1991, more than three
years before the signing of the original JVA on April 25, 1995. The economic situation in the country
had greatly improved during the intervening period.
Reclamation under the BOT Law and the Local Government Code
The constitutional prohibition in Section 3, Article XII of the 1987 Constitution is absolute and clear:
"Private corporations or associations may not hold such alienable lands of the public domain except
by lease, x x x." Even Republic Act No. 6957 ("BOT Law," for brevity), cited by PEA and AMARI as
legislative authority to sell reclaimed lands to private parties, recognizes the constitutional ban.
Section 6 of RA No. 6957 states
"Sec. 6. Repayment Scheme. - For the financing, construction, operation and maintenance
of any infrastructure projects undertaken through the build-operate-and-transfer arrangement
or any of its variations pursuant to the provisions of this Act, the project proponent x x x may
likewise be repaid in the form of a share in the revenue of the project or other non-monetary
payments, such as, but not limited to, the grant of a portion or percentage of the reclaimed
land, subject to the constitutional requirements with respect to the ownership of the
land: x x x." (Emphasis supplied)
A private corporation, even one that undertakes the physical reclamation of a government BOT
project, cannot acquire reclaimed alienable lands of the public domain in view of the constitutional
ban.
Section 302 of the Local Government Code, also mentioned by PEA and AMARI, authorizes local
governments in land reclamation projects to pay the contractor or developer in kind consisting of a
percentage of the reclaimed land, to wit:
"Section 302. Financing, Construction, Maintenance, Operation, and Management of
Infrastructure Projects by the Private Sector. x x x
x x x
In case of land reclamation or construction of industrial estates, the repayment plan may
consist of the grant of a portion or percentage of the reclaimed land or the industrial estate
constructed."
Although Section 302 of the Local Government Code does not contain a proviso similar to that of the
BOT Law, the constitutional restrictions on land ownership automatically apply even though not
expressly mentioned in the Local Government Code.
Thus, under either the BOT Law or the Local Government Code, the contractor or developer, if a
corporate entity, can only be paid with leaseholds on portions of the reclaimed land. If the contractor
or developer is an individual, portions of the reclaimed land, not exceeding 12 hectares
96
of non-
agricultural lands, may be conveyed to him in ownership in view of the legislative authority allowing
such conveyance. This is the only way these provisions of the BOT Law and the Local Government
Code can avoid a direct collision with Section 3, Article XII of the 1987 Constitution.
Registration of lands of the public domain
Finally, PEA theorizes that the "act of conveying the ownership of the reclaimed lands to public
respondent PEA transformed such lands of the public domain to private lands." This theory is
echoed by AMARI which maintains that the "issuance of the special patent leading to the eventual
issuance of title takes the subject land away from the land of public domain and converts the
property into patrimonial or private property." In short, PEA and AMARI contend that with the
issuance of Special Patent No. 3517 and the corresponding certificates of titles, the 157.84 hectares
comprising the Freedom Islands have become private lands of PEA. In support of their theory, PEA
and AMARI cite the following rulings of the Court:
1. Sumail v. Judge of CFI of Cotabato,
97
where the Court held
"Once the patent was granted and the corresponding certificate of title was issued, the land
ceased to be part of the public domain and became private property over which the Director
of Lands has neither control nor jurisdiction."
2. Lee Hong Hok v. David,
98
where the Court declared -
"After the registration and issuance of the certificate and duplicate certificate of title based on
a public land patent, the land covered thereby automatically comes under the operation of
Republic Act 496 subject to all the safeguards provided therein."3. Heirs of Gregorio Tengco
v. Heirs of Jose Aliwalas,
99
where the Court ruled -
"While the Director of Lands has the power to review homestead patents, he may do so only
so long as the land remains part of the public domain and continues to be under his
exclusive control; but once the patent is registered and a certificate of title is issued, the land
ceases to be part of the public domain and becomes private property over which the Director
of Lands has neither control nor jurisdiction."
4. Manalo v. Intermediate Appellate Court,
100
where the Court held
"When the lots in dispute were certified as disposable on May 19, 1971, and free patents
were issued covering the same in favor of the private respondents, the said lots ceased to be
part of the public domain and, therefore, the Director of Lands lost jurisdiction over the
same."
5.Republic v. Court of Appeals,
101
where the Court stated
"Proclamation No. 350, dated October 9, 1956, of President Magsaysay legally effected a
land grant to the Mindanao Medical Center, Bureau of Medical Services, Department of
Health, of the whole lot, validly sufficient for initial registration under the Land Registration
Act. Such land grant is constitutive of a 'fee simple' title or absolute title in favor of petitioner
Mindanao Medical Center. Thus, Section 122 of the Act, which governs the registration of
grants or patents involving public lands, provides that 'Whenever public lands in the
Philippine Islands belonging to the Government of the United States or to the Government of
the Philippines are alienated, granted or conveyed to persons or to public or private
corporations, the same shall be brought forthwith under the operation of this Act (Land
Registration Act, Act 496) and shall become registered lands.'"
The first four cases cited involve petitions to cancel the land patents and the corresponding
certificates of titlesissued to private parties. These four cases uniformly hold that the Director of
Lands has no jurisdiction over private lands or that upon issuance of the certificate of title the land
automatically comes under the Torrens System. The fifth case cited involves the registration under
the Torrens System of a 12.8-hectare public land granted by the National Government to Mindanao
Medical Center, a government unit under the Department of Health. The National Government
transferred the 12.8-hectare public land to serve as the site for the hospital buildings and other
facilities of Mindanao Medical Center, which performed a public service. The Court affirmed the
registration of the 12.8-hectare public land in the name of Mindanao Medical Center under Section
122 of Act No. 496. This fifth case is an example of a public land being registered under Act No. 496
without the land losing its character as a property of public dominion.
In the instant case, the only patent and certificates of title issued are those in the name of PEA, a
wholly government owned corporation performing public as well as proprietary functions. No patent
or certificate of title has been issued to any private party. No one is asking the Director of Lands to
cancel PEA's patent or certificates of title. In fact, the thrust of the instant petition is that PEA's
certificates of title should remain with PEA, and the land covered by these certificates, being
alienable lands of the public domain, should not be sold to a private corporation.
Registration of land under Act No. 496 or PD No. 1529 does not vest in the registrant private or
public ownership of the land. Registration is not a mode of acquiring ownership but is merely
evidence of ownership previously conferred by any of the recognized modes of acquiring ownership.
Registration does not give the registrant a better right than what the registrant had prior to the
registration.
102
The registration of lands of the public domain under the Torrens system, by itself,
cannot convert public lands into private lands.
103

Jurisprudence holding that upon the grant of the patent or issuance of the certificate of title the
alienable land of the public domain automatically becomes private land cannot apply to government
units and entities like PEA. The transfer of the Freedom Islands to PEA was made subject to the
provisions of CA No. 141 as expressly stated in Special Patent No. 3517 issued by then President
Aquino, to wit:
"NOW, THEREFORE, KNOW YE, that by authority of the Constitution of the Philippines and
in conformity with the provisions of Presidential Decree No. 1084, supplemented by
Commonwealth Act No. 141, as amended, there are hereby granted and conveyed unto
the Public Estates Authority the aforesaid tracts of land containing a total area of one million
nine hundred fifteen thousand eight hundred ninety four (1,915,894) square meters; the
technical description of which are hereto attached and made an integral part hereof."
(Emphasis supplied)
Thus, the provisions of CA No. 141 apply to the Freedom Islands on matters not covered by PD No.
1084. Section 60 of CA No. 141 prohibits, "except when authorized by Congress," the sale of
alienable lands of the public domain that are transferred to government units or entities. Section 60
of CA No. 141 constitutes, under Section 44 of PD No. 1529, a "statutory lien affecting title" of the
registered land even if not annotated on the certificate of title.
104
Alienable lands of the public domain
held by government entities under Section 60 of CA No. 141 remain public lands because they
cannot be alienated or encumbered unless Congress passes a law authorizing their disposition.
Congress, however, cannot authorize the sale to private corporations of reclaimed alienable lands of
the public domain because of the constitutional ban. Only individuals can benefit from such law.
The grant of legislative authority to sell public lands in accordance with Section 60 of CA No. 141
does not automatically convert alienable lands of the public domain into private or patrimonial lands.
The alienable lands of the public domain must be transferred to qualified private parties, or to
government entities not tasked to dispose of public lands, before these lands can become private or
patrimonial lands. Otherwise, the constitutional ban will become illusory if Congress can declare
lands of the public domain as private or patrimonial lands in the hands of a government agency
tasked to dispose of public lands. This will allow private corporations to acquire directly from
government agencies limitless areas of lands which, prior to such law, are concededly public lands.
Under EO No. 525, PEA became the central implementing agency of the National Government to
reclaim foreshore and submerged areas of the public domain. Thus, EO No. 525 declares that
"EXECUTIVE ORDER NO. 525
Designating the Public Estates Authority as the Agency Primarily Responsible for all
Reclamation Projects
Whereas, there are several reclamation projects which are ongoing or being proposed to be
undertaken in various parts of the country which need to be evaluated for consistency with
national programs;
Whereas, there is a need to give further institutional support to the Government's declared
policy to provide for a coordinated, economical and efficient reclamation of lands;
Whereas, Presidential Decree No. 3-A requires that all reclamation of areas shall be limited
to the National Government or any person authorized by it under proper contract;
Whereas, a central authority is needed to act on behalf of the National Government
which shall ensure a coordinated and integrated approach in the reclamation of lands;
Whereas, Presidential Decree No. 1084 creates the Public Estates Authority as a
government corporation to undertake reclamation of lands and ensure their maximum
utilization in promoting public welfare and interests; and
Whereas, Presidential Decree No. 1416 provides the President with continuing authority to
reorganize the national government including the transfer, abolition, or merger of functions
and offices.
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of
the powers vested in me by the Constitution and pursuant to Presidential Decree No. 1416,
do hereby order and direct the following:
Section 1. The Public Estates Authority (PEA) shall be primarily responsible for
integrating, directing, and coordinating all reclamation projects for and on behalf of
the National Government. All reclamation projects shall be approved by the President upon
recommendation of the PEA, and shall be undertaken by the PEA or through a proper
contract executed by it with any person or entity; Provided, that, reclamation projects of any
national government agency or entity authorized under its charter shall be undertaken in
consultation with the PEA upon approval of the President.
x x x ."
As the central implementing agency tasked to undertake reclamation projects nationwide, with
authority to sell reclaimed lands, PEA took the place of DENR as the government agency charged
with leasing or selling reclaimed lands of the public domain. The reclaimed lands being leased or
sold by PEA are not private lands, in the same manner that DENR, when it disposes of other
alienable lands, does not dispose of private lands but alienable lands of the public domain. Only
when qualified private parties acquire these lands will the lands become private lands. In the hands
of the government agency tasked and authorized to dispose of alienable of disposable lands
of the public domain, these lands are still public, not private lands.
Furthermore, PEA's charter expressly states that PEA "shall hold lands of the public domain" as
well as "any and all kinds of lands." PEA can hold both lands of the public domain and private lands.
Thus, the mere fact that alienable lands of the public domain like the Freedom Islands are
transferred to PEA and issued land patents or certificates of title in PEA's name does not
automatically make such lands private.
To allow vast areas of reclaimed lands of the public domain to be transferred to PEA as private lands
will sanction a gross violation of the constitutional ban on private corporations from acquiring any
kind of alienable land of the public domain. PEA will simply turn around, as PEA has now done
under the Amended J VA, and transfer several hundreds of hectares of these reclaimed and still to
be reclaimed lands to a single private corporation in only one transaction. This scheme will
effectively nullify the constitutional ban in Section 3, Article XII of the 1987 Constitution which was
intended to diffuse equitably the ownership of alienable lands of the public domain among Filipinos,
now numbering over 80 million strong.
This scheme, if allowed, can even be applied to alienable agricultural lands of the public domain
since PEA can "acquire x x x any and all kinds of lands." This will open the floodgates to
corporations and even individuals acquiring hundreds of hectares of alienable lands of the public
domain under the guise that in the hands of PEA these lands are private lands. This will result in
corporations amassing huge landholdings never before seen in this country - creating the very evil
that the constitutional ban was designed to prevent. This will completely reverse the clear direction
of constitutional development in this country. The 1935 Constitution allowed private corporations to
acquire not more than 1,024 hectares of public lands.
105
The 1973 Constitution prohibited private
corporations from acquiring any kind of public land, and the 1987 Constitution has unequivocally
reiterated this prohibition.
The contention of PEA and AMARI that public lands, once registered under Act No. 496 or PD No.
1529, automatically become private lands is contrary to existing laws. Several laws authorize lands
of the public domain to be registered under the Torrens System or Act No. 496, now PD No. 1529,
without losing their character as public lands. Section 122 of Act No. 496, and Section 103 of PD No.
1529, respectively, provide as follows:
Act No. 496
"Sec. 122. Whenever public lands in the Philippine Islands belonging to the x x x
Government of the Philippine Islands are alienated, granted, or conveyed to persons or
the public or private corporations, the same shall be brought forthwith under the operation
of this Act and shall become registered lands."
PD No. 1529
"Sec. 103. Certificate of Title to Patents. Whenever public land is by the Government
alienated, granted or conveyed to any person, the same shall be brought forthwith under the
operation of this Decree." (Emphasis supplied)
Based on its legislative history, the phrase "conveyed to any person" in Section 103 of PD No. 1529
includes conveyances of public lands to public corporations.
Alienable lands of the public domain "granted, donated, or transferred to a province, municipality, or
branch or subdivision of the Government," as provided in Section 60 of CA No. 141, may be
registered under the Torrens System pursuant to Section 103 of PD No. 1529. Such registration,
however, is expressly subject to the condition in Section 60 of CA No. 141 that the land "shall not be
alienated, encumbered or otherwise disposed of in a manner affecting its title, except when
authorized by Congress." This provision refers to government reclaimed, foreshore and marshy
lands of the public domain that have been titled but still cannot be alienated or encumbered unless
expressly authorized by Congress. The need for legislative authority prevents the registered land of
the public domain from becoming private land that can be disposed of to qualified private parties.
The Revised Administrative Code of 1987 also recognizes that lands of the public domain may be
registered under the Torrens System. Section 48, Chapter 12, Book I of the Code states
"Sec. 48. Official Authorized to Convey Real Property. Whenever real property of the
Government is authorized by law to be conveyed, the deed of conveyance shall be executed
in behalf of the government by the following:
(1) x x x
(2) For property belonging to the Republic of the Philippines, but titled in the name of
any political subdivision or of any corporate agency or instrumentality, by the
executive head of the agency or instrumentality." (Emphasis supplied)
Thus, private property purchased by the National Government for expansion of a public wharf may
be titled in the name of a government corporation regulating port operations in the country. Private
property purchased by the National Government for expansion of an airport may also be titled in the
name of the government agency tasked to administer the airport. Private property donated to a
municipality for use as a town plaza or public school site may likewise be titled in the name of the
municipality.
106
All these properties become properties of the public domain, and if already registered
under Act No. 496 or PD No. 1529, remain registered land. There is no requirement or provision in
any existing law for the de-registration of land from the Torrens System.
Private lands taken by the Government for public use under its power of eminent domain become
unquestionably part of the public domain. Nevertheless, Section 85 of PD No. 1529 authorizes the
Register of Deeds to issue in the name of the National Government new certificates of title covering
such expropriated lands. Section 85 of PD No. 1529 states
"Sec. 85. Land taken by eminent domain. Whenever any registered land, or interest therein,
is expropriated or taken by eminent domain, the National Government, province, city or
municipality, or any other agency or instrumentality exercising such right shall file for
registration in the proper Registry a certified copy of the judgment which shall state definitely
by an adequate description, the particular property or interest expropriated, the number of
the certificate of title, and the nature of the public use. A memorandum of the right or interest
taken shall be made on each certificate of title by the Register of Deeds, and where the fee
simple is taken, a new certificate shall be issued in favor of the National Government,
province, city, municipality, or any other agency or instrumentality exercising such right for
the land so taken. The legal expenses incident to the memorandum of registration or
issuance of a new certificate of title shall be for the account of the authority taking the land or
interest therein." (Emphasis supplied)
Consequently, lands registered under Act No. 496 or PD No. 1529 are not exclusively private or
patrimonial lands. Lands of the public domain may also be registered pursuant to existing laws.
AMARI makes a parting shot that the Amended JVA is not a sale to AMARI of the Freedom Islands
or of the lands to be reclaimed from submerged areas of Manila Bay. In the words of AMARI, the
Amended JVA "is not a sale but a joint venture with a stipulation for reimbursement of the original
cost incurred by PEA for the earlier reclamation and construction works performed by the CDCP
under its 1973 contract with the Republic." Whether the Amended JVA is a sale or a joint venture,
the fact remains that the Amended JVA requires PEA to "cause the issuance and delivery of the
certificates of title conveying AMARI's Land Share in the name of AMARI."
107

This stipulation still contravenes Section 3, Article XII of the 1987 Constitution which provides that
private corporations "shall not hold such alienable lands of the public domain except by lease." The
transfer of title and ownership to AMARI clearly means that AMARI will "hold" the reclaimed lands
other than by lease. The transfer of title and ownership is a "disposition" of the reclaimed lands, a
transaction considered a sale or alienation under CA No. 141,
108
the Government Auditing
Code,
109
and Section 3, Article XII of the 1987 Constitution.
The Regalian doctrine is deeply implanted in our legal system. Foreshore and submerged areas
form part of the public domain and are inalienable. Lands reclaimed from foreshore and submerged
areas also form part of the public domain and are also inalienable, unless converted pursuant to law
into alienable or disposable lands of the public domain. Historically, lands reclaimed by the
government are sui generis, not available for sale to private parties unlike other alienable public
lands. Reclaimed lands retain their inherent potential as areas for public use or public service.
Alienable lands of the public domain, increasingly becoming scarce natural resources, are to be
distributed equitably among our ever-growing population. To insure such equitable distribution, the
1973 and 1987 Constitutions have barred private corporations from acquiring any kind of alienable
land of the public domain. Those who attempt to dispose of inalienable natural resources of the
State, or seek to circumvent the constitutional ban on alienation of lands of the public domain to
private corporations, do so at their own risk.
We can now summarize our conclusions as follows:
1. The 157.84 hectares of reclaimed lands comprising the Freedom Islands, now covered by
certificates of title in the name of PEA, are alienable lands of the public domain. PEA may
lease these lands to private corporations but may not sell or transfer ownership of these
lands to private corporations. PEA may only sell these lands to Philippine citizens, subject to
the ownership limitations in the 1987 Constitution and existing laws.
2. The 592.15 hectares of submerged areas of Manila Bay remain inalienable natural
resources of the public domain until classified as alienable or disposable lands open to
disposition and declared no longer needed for public service. The government can make
such classification and declaration only after PEA has reclaimed these submerged areas.
Only then can these lands qualify as agricultural lands of the public domain, which are the
only natural resources the government can alienate. In their present state, the 592.15
hectares of submerged areas are inalienable and outside the commerce of man.
3. Since the Amended JVA seeks to transfer to AMARI, a private corporation, ownership of
77.34 hectares
110
of the Freedom Islands, such transfer is void for being contrary to Section 3,
Article XII of the 1987 Constitution which prohibits private corporations from acquiring any
kind of alienable land of the public domain.
4. Since the Amended JVA also seeks to transfer to AMARI ownership of 290.156
hectares
111
of still submerged areas of Manila Bay, such transfer is void for being contrary to
Section 2, Article XII of the 1987 Constitution which prohibits the alienation of natural
resources other than agricultural lands of the public domain. PEA may reclaim these
submerged areas. Thereafter, the government can classify the reclaimed lands as alienable
or disposable, and further declare them no longer needed for public service. Still, the transfer
of such reclaimed alienable lands of the public domain to AMARI will be void in view of
Section 3, Article XII of the 1987 Constitution which prohibits private corporations from
acquiring any kind of alienable land of the public domain.
Clearly, the Amended JVA violates glaringly Sections 2 and 3, Article XII of the 1987 Constitution.
Under Article 1409
112
of the Civil Code, contracts whose "object or purpose is contrary to law," or
whose "object is outside the commerce of men," are "inexistent and void from the beginning." The
Court must perform its duty to defend and uphold the Constitution, and therefore declares the
Amended J VA null and void ab initio.
Seventh issue: whether the Court is the proper forum to raise the issue of whether the
Amended J VA is grossly disadvantageous to the government.
Considering that the Amended JVA is null and void ab initio, there is no necessity to rule on this last
issue. Besides, the Court is not a trier of facts, and this last issue involves a determination of factual
matters.
WHEREFORE, the petition is GRANTED. The Public Estates Authority and Amari Coastal Bay
Development Corporation are PERMANENTLY ENJOINED from implementing the Amended Joint
Venture Agreement which is hereby declared NULL and VOID ab initio.
SO ORDERED.
G.R. No. 115381 December 23, 1994
KILUSANG MAYO UNO LABOR CENTER, petitioner,
vs.
HON. JESUS B. GARCIA, JR., the LAND TRANSPORTATION FRANCHISING AND
REGULATORY BOARD, and the PROVINCIAL BUS OPERATORS ASSOCIATION OF THE
PHILIPPINES, respondents.
Potenciano A. Flores for petitioner.
Robert Anthony C. Sison, Cesar B. Brillantes and Jose Z. Galsim for private respondent.
Jose F. Miravite for movants.

KAPUNAN, J .:
Public utilities are privately owned and operated businesses whose service are essential to the
general public. They are enterprises which specially cater to the needs of the public and conduce to
their comfort and convenience. As such, public utility services are impressed with public interest and
concern. The same is true with respect to the business of common carrier which holds such a
peculiar relation to the public interest that there is superinduced upon it the right of public regulation
when private properties are affected with public interest, hence, they cease to be juris privati only.
When, therefore, one devotes his property to a use in which the public has an interest, he, in effect
grants to the public an interest in that use, and must submit to the control by the public for the
common good, to the extent of the interest he has thus created.
1

An abdication of the licensing and regulatory government agencies of their functions as the instant
petition seeks to show, is indeed lamentable. Not only is it an unsound administrative policy but it is
inimical to public trust and public interest as well.
The instant petition for certiorari assails the constitutionality and validity of certain memoranda,
circulars and/or orders of the Department of Transportation and Communications (DOTC) and the
Land Transportation Franchising and Regulatory Board LTFRB)
2
which, among others, (a) authorize
provincial bus and jeepney operators to increase or decrease the prescribed transportation fares without
application therefor with the LTFRB and without hearing and approval thereof by said agency in violation
of Sec. 16(c) of Commonwealth Act No. 146, as amended, otherwise known as the Public Service Act,
and in derogation of LTFRB's duty to fix and determine just and reasonable fares by delegating that
function to bus operators, and (b) establish a presumption of public need in favor of applicants for
certificates of public convenience (CPC) and place on the oppositor the burden of proving that there is no
need for the proposed service, in patent violation not only of Sec. 16(c) of CA 146, as amended, but also
of Sec. 20(a) of the same Act mandating that fares should be "just and reasonable." It is, likewise,
violative of the Rules of Court which places upon each party the burden to prove his own affirmative
allegations.
3
The offending provisions contained in the questioned issuances pointed out by petitioner,
have resulted in the introduction into our highways and thoroughfares thousands of old and smoke-
belching buses, many of which are right-hand driven, and have exposed our consumers to the burden of
spiraling costs of public transportation without hearing and due process.
The following memoranda, circulars and/or orders are sought to be nullified by the instant
petition, viz: (a) DOTC Memorandum Order 90-395, dated June 26, 1990 relative to the
implementation of a fare range scheme for provincial bus services in the country; (b) DOTC
Department Order No.
92-587, dated March 30, 1992, defining the policy framework on the regulation of transport services;
(c) DOTC Memorandum dated October 8, 1992, laying down rules and procedures to implement
Department Order No. 92-587; (d) LTFRB Memorandum Circular No. 92-009, providing
implementing guidelines on the DOTC Department Order No. 92-587; and (e) LTFRB Order dated
March 24, 1994 in Case No. 94-3112.
The relevant antecedents are as follows:
On June 26, 1990; then Secretary of DOTC, Oscar M. Orbos, issued Memorandum Circular No. 90-
395 to then LTFRB Chairman, Remedios A.S. Fernando allowing provincial bus operators to charge
passengers rates within a range of 15% above and 15% below the LTFRB official rate for a period of
one (1) year. The text of the memorandum order reads in full:
One of the policy reforms and measures that is in line with the thrusts and the
priorities set out in the Medium-Term Philippine Development Plan (MTPDP) 1987
1992) is the liberalization of regulations in the transport sector. Along this line, the
Government intends to move away gradually from regulatory policies and make
progress towards greater reliance on free market forces.
Based on several surveys and observations, bus companies are already charging
passenger rates above and below the official fare declared by LTFRB on many
provincial routes. It is in this context that some form of liberalization on public
transport fares is to be tested on a pilot basis.
In view thereof, the LTFRB is hereby directed to immediately publicize a fare range
scheme for all provincial bus routes in country (except those operating within Metro
Manila). Transport Operators shall be allowed to charge passengers within a range
of fifteen percent (15%) above and fifteen percent (15%) below the LTFRB official
rate for a period of one year.
Guidelines and procedures for the said scheme shall be prepared by LTFRB in
coordination with the DOTC Planning Service.
The implementation of the said fare range scheme shall start on 6 August 1990.
For compliance. (Emphasis ours.)
Finding the implementation of the fare range scheme "not legally feasible," Remedios A.S. Fernando
submitted the following memorandum to Oscar M. Orbos on July 24, 1990, to wit:
With reference to DOTC Memorandum Order No. 90-395 dated 26 June 1990 which
the LTFRB received on 19 July 1990, directing the Board "to immediately publicize a
fare range scheme for all provincial bus routes in the country (except those operating
within Metro Manila)" that will allow operators "to charge passengers within a range
of fifteen percent (15%) above and fifteen percent (15%) below the LTFRB official
rate for a period of one year" the undersigned is respectfully adverting the
Secretary's attention to the following for his consideration:
1. Section 16(c) of the Public Service Act prescribes the following for
the fixing and determination of rates (a) the rates to be approved
should be proposed by public service operators; (b) there should be a
publication and notice to concerned or affected parties in the territory
affected; (c) a public hearing should be held for the fixing of the rates;
hence, implementation of the proposed fare range scheme on August
6 without complying with the requirements of the Public Service Act
may not be legally feasible.
2. To allow bus operators in the country to charge fares fifteen (15%)
above the present LTFRB fares in the wake of the devastation, death
and suffering caused by the July 16 earthquake will not be socially
warranted and will be politically unsound; most likely public criticism
against the DOTC and the LTFRB will be triggered by the
untimely motu propioimplementation of the proposal by the mere
expedient of publicizing the fare range scheme without calling a
public hearing, which scheme many as early as during the
Secretary's predecessor know through newspaper reports and
columnists' comments to be Asian Development Bank and World
Bank inspired.
3. More than inducing a reduction in bus fares by fifteen percent
(15%) the implementation of the proposal will instead trigger an
upward adjustment in bus fares by fifteen percent (15%) at a time
when hundreds of thousands of people in Central and Northern
Luzon, particularly in Central Pangasinan, La Union, Baguio City,
Nueva Ecija, and the Cagayan Valley are suffering from the
devastation and havoc caused by the recent earthquake.
4. In lieu of the said proposal, the DOTC with its agencies involved in
public transportation can consider measures and reforms in the
industry that will be socially uplifting, especially for the people in the
areas devastated by the recent earthquake.
In view of the foregoing considerations, the undersigned respectfully suggests that
the implementation of the proposed fare range scheme this year be further studied
and evaluated.
On December 5, 1990, private respondent Provincial Bus Operators Association of the Philippines,
Inc. (PBOAP) filed an application for fare rate increase. An across-the-board increase of eight and a
half centavos (P0.085) per kilometer for all types of provincial buses with a minimum-maximum fare
range of fifteen (15%) percent over and below the proposed basic per kilometer fare rate, with the
said minimum-maximum fare range applying only to ordinary, first class and premium class buses
and a fifty-centavo (P0.50) minimum per kilometer fare for aircon buses, was sought.
On December 6, 1990, private respondent PBOAP reduced its applied proposed fare to an across-
the-board increase of six and a half (P0.065) centavos per kilometer for ordinary buses. The
decrease was due to the drop in the expected price of diesel.
The application was opposed by the Philippine Consumers Foundation, Inc. and Perla C. Bautista
alleging that the proposed rates were exorbitant and unreasonable and that the application
contained no allegation on the rate of return of the proposed increase in rates.
On December 14, 1990, public respondent LTFRB rendered a decision granting the fare rate
increase in accordance with the following schedule of fares on a straight computation method, viz:
AUTHORIZED FARES
LUZON
MIN. OF 5 KMS. SUCCEEDING KM.
REGULAR P1.50 P0.37
STUDENT P1.15 P0.28
VISAYAS/MINDANAO
REGULAR P1.60 P0.375
STUDENT P1.20 P0.285
FIRST CLASS (PER KM.)
LUZON P0.385
VISAYAS/
MINDANAO P0.395
PREMIERE CLASS (PER KM.)
LUZON P0.395
VISAYAS/
MINDANAO P0.405
AIRCON (PER KM.) P0.415.
4

On March 30, 1992, then Secretary of the Department of Transportation and Communications Pete
Nicomedes Prado issued Department Order No.
92-587 defining the policy framework on the regulation of transport services. The full text of the said
order is reproduced below in view of the importance of the provisions contained therein:
WHEREAS, Executive Order No. 125 as amended, designates the Department of
Transportation and Communications (DOTC) as the primary policy, planning,
regulating and implementing agency on transportation;
WHEREAS, to achieve the objective of a viable, efficient, and dependable
transportation system, the transportation regulatory agencies under or attached to
the DOTC have to harmonize their decisions and adopt a common philosophy and
direction;
WHEREAS, the government proposes to build on the successful liberalization
measures pursued over the last five years and bring the transport sector nearer to a
balanced longer term regulatory framework;
NOW, THEREFORE, pursuant to the powers granted by laws to the DOTC, the
following policies and principles in the economic regulation of land, air, and water
transportation services are hereby adopted:
1. Entry into and exit out of the industry. Following the Constitutional dictum against
monopoly, no franchise holder shall be permitted to maintain a monopoly on any
route. A minimum of two franchise holders shall be permitted to operate on any
route.
The requirements to grant a certificate to operate, or certificate of public
convenience, shall be: proof of Filipino citizenship, financial capability, public need,
and sufficient insurance cover to protect the riding public.
In determining public need, the presumption of need for a service shall be deemed in
favor of the applicant. The burden of proving that there is no need for a proposed
service shall be with the oppositor(s).
In the interest of providing efficient public transport services, the use of the "prior
operator" and the "priority of filing" rules shall be discontinued. The route measured
capacity test or other similar tests of demand for vehicle/vessel fleet on any route
shall be used only as a guide in weighing the merits of each franchise application
and not as a limit to the services offered.
Where there are limitations in facilities, such as congested road space in urban
areas, or at airports and ports, the use of demand management measures in
conformity with market principles may be considered.
The right of an operator to leave the industry is recognized as a business decision,
subject only to the filing of appropriate notice and following a phase-out period, to
inform the public and to minimize disruption of services.
2. Rate and Fare Setting. Freight rates shall be freed gradually from government
controls. Passenger fares shall also be deregulated, except for the lowest class of
passenger service (normally third class passenger transport) for which the
government will fix indicative or reference fares. Operators of particular services may
fix their own fares within a range 15% above and below the indicative or reference
rate.
Where there is lack of effective competition for services, or on specific routes, or for
the transport of particular commodities, maximum mandatory freight rates or
passenger fares shall be set temporarily by the government pending actions to
increase the level of competition.
For unserved or single operator routes, the government shall contract such services
in the most advantageous terms to the public and the government, following public
bids for the services. The advisability of bidding out the services or using other kinds
of incentives on such routes shall be studied by the government.
3. Special Incentives and Financing for Fleet Acquisition. As a matter of policy, the
government shall not engage in special financing and incentive programs, including
direct subsidies for fleet acquisition and expansion. Only when the market situation
warrants government intervention shall programs of this type be considered. Existing
programs shall be phased out gradually.
The Land Transportation Franchising and Regulatory Board, the Civil Aeronautics
Board, the Maritime Industry Authority are hereby directed to submit to the Office of
the Secretary, within forty-five (45) days of this Order, the detailed rules and
procedures for the Implementation of the policies herein set forth. In the formulation
of such rules, the concerned agencies shall be guided by the most recent studies on
the subjects, such as the Provincial Road Passenger Transport Study, the Civil
Aviation Master Plan, the Presidential Task Force on the Inter-island Shipping
Industry, and the Inter-island Liner Shipping Rate Rationalization Study.
For the compliance of all concerned. (Emphasis ours)
On October 8, 1992, public respondent Secretary of the Department of Transportation and
Communications Jesus B. Garcia, Jr. issued a memorandum to the Acting Chairman of the LTFRB
suggesting swift action on the adoption of rules and procedures to implement above-quoted
Department Order No. 92-587 that laid down deregulation and other liberalization policies for the
transport sector. Attached to the said memorandum was a revised draft of the required rules and
procedures covering (i) Entry Into and Exit Out of the Industry and (ii) Rate and Fare Setting, with
comments and suggestions from the World Bank incorporated therein. Likewise, resplendent from
the said memorandum is the statement of the DOTC Secretary that the adoption of the rules and
procedures is a pre-requisite to the approval of the Economic Integration Loan from the World
Bank.
5

On February 17, 1993, the LTFRB issued Memorandum Circular
No. 92-009 promulgating the guidelines for the implementation of DOTC Department Order No. 92-
587. The Circular provides, among others, the following challenged portions:
xxx xxx xxx
IV. Policy Guidelines on the Issuance of Certificate of Public Convenience.
The issuance of a Certificate of Public Convenience is determined by public
need. The presumption of public need for a service shall be deemed in favor of the
applicant, while burden of proving that there is no need for the proposed service shall
be the oppositor'(s).
xxx xxx xxx
V. Rate and Fare Setting
The control in pricing shall be liberalized to introduce price competition
complementary with the quality of service, subject to prior notice and public hearing.
Fares shall not be provisionally authorized without public hearing.
A. On the General Structure of Rates
1. The existing authorized fare range system of plus or minus 15 per cent for
provincial buses and jeepneys shall be widened to 20% and -25% limit in 1994 with
the authorized fare to be replaced by an indicative or reference rate as the basis for
the expanded fare range.
2. Fare systems for aircon buses are liberalized to cover first class and premier
services.
xxx xxx xxx
(Emphasis ours).
Sometime in March, 1994, private respondent PBOAP, availing itself of the deregulation policy of the
DOTC allowing provincial bus operators to collect plus 20% and minus 25% of the prescribed fare
without first having filed a petition for the purpose and without the benefit of a public hearing,
announced a fare increase of twenty (20%) percent of the existing fares. Said increased fares were
to be made effective on March 16, 1994.
On March 16, 1994, petitioner KMU filed a petition before the LTFRB opposing the upward
adjustment of bus fares.
On March 24, 1994, the LTFRB issued one of the assailed orders dismissing the petition for lack of
merit. The dispositive portion reads:
PREMISES CONSIDERED, this Board after considering the arguments of the
parties, hereby DISMISSES FOR LACK OF MERIT the petition filed in the above-
entitled case. This petition in this case was resolved with dispatch at the request of
petitioner to enable it to immediately avail of the legal remedies or options it is
entitled under existing laws.
SO ORDERED.
6

Hence, the instant petition for certiorari with an urgent prayer for issuance of a temporary restraining
order.
The Court, on June 20, 1994, issued a temporary restraining order enjoining, prohibiting and
preventing respondents from implementing the bus fare rate increase as well as the questioned
orders and memorandum circulars. This meant that provincial bus fares were rolled back to the
levels duly authorized by the LTFRB prior to March 16, 1994. A moratorium was likewise enforced
on the issuance of franchises for the operation of buses, jeepneys, and taxicabs.
Petitioner KMU anchors its claim on two (2) grounds. First, the authority given by respondent LTFRB
to provincial bus operators to set a fare range of plus or minus fifteen (15%) percent, later increased
to plus twenty (20%) and minus twenty-five (-25%) percent, over and above the existing authorized
fare without having to file a petition for the purpose, is unconstitutional, invalid and illegal. Second,
the establishment of a presumption of public need in favor of an applicant for a proposed transport
service without having to prove public necessity, is illegal for being violative of the Public Service Act
and the Rules of Court.
In its Comment, private respondent PBOAP, while not actually touching upon the issues raised by
the petitioner, questions the wisdom and the manner by which the instant petition was filed. It
asserts that the petitioner has no legal standing to sue or has no real interest in the case at bench
and in obtaining the reliefs prayed for.
In their Comment filed by the Office of the Solicitor General, public respondents DOTC Secretary
Jesus B. Garcia, Jr. and the LTFRB asseverate that the petitioner does not have the standing to
maintain the instant suit. They further claim that it is within DOTC and LTFRB's authority to set a fare
range scheme and establish a presumption of public need in applications for certificates of public
convenience.
We find the instant petition impressed with merit.
At the outset, the threshold issue of locus standi must be struck. Petitioner KMU has the standing to
sue.
The requirement of locus standi inheres from the definition of judicial power. Section 1 of Article VIII
of the Constitution provides:
xxx xxx xxx
Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the Government.
In Lamb v. Phipps,
7
we ruled that judicial power is the power to hear and decide causes pending
between parties who have the right to sue in the courts of law and equity. Corollary to this provision is the
principle of locus standi of a party litigant. One who is directly affected by and whose interest is immediate
and substantial in the controversy has the standing to sue. The rule therefore requires that a party must
show a personal stake in the outcome of the case or an injury to himself that can be redressed by a
favorable decision so as to warrant an invocation of the court's jurisdiction and to justify the exercise of
the court's remedial powers in his behalf.
8

In the case at bench, petitioner, whose members had suffered and continue to suffer grave and
irreparable injury and damage from the implementation of the questioned memoranda, circulars
and/or orders, has shown that it has a clear legal right that was violated and continues to be violated
with the enforcement of the challenged memoranda, circulars and/or orders. KMU members, who
avail of the use of buses, trains and jeepneys everyday, are directly affected by the burdensome
cost of arbitrary increase in passenger fares. They are part of the millions of commuters who
comprise the riding public. Certainly, their rights must be protected, not neglected nor ignored.
Assuming arguendo that petitioner is not possessed of the standing to sue, this court is ready to
brush aside this barren procedural infirmity and recognize the legal standing of the petitioner in view
of the transcendental importance of the issues raised. And this act of liberality is not without judicial
precedent. As early as the Emergency Powers Cases, this Court had exercised its discretion and
waived the requirement of proper party. In the recent case of Kilosbayan, Inc., et al. v. Teofisto
Guingona, Jr., et al.,
9
we ruled in the same lines and enumerated some of the cases where the same
policy was adopted, viz:
. . . A party's standing before this Court is a procedural technicality which it may, in
the exercise of its discretion, set aside in view of the importance of the issues raised.
In the landmark Emergency Powers Cases, [G.R. No. L-2044 (Araneta v. Dinglasan);
G.R. No. L-2756 (Araneta
v. Angeles); G.R. No. L-3054 (Rodriguez v. Tesorero de Filipinas); G.R. No. L-3055
(Guerrero v. Commissioner of Customs); and G.R. No. L-3056 (Barredo v.
Commission on Elections), 84 Phil. 368 (1949)], this Court brushed aside this
technicality because "the transcendental importance to the public of these cases
demands that they be settled promptly and definitely, brushing aside, if we must,
technicalities of procedure. (Avelino vs. Cuenco, G.R. No. L-2621)." Insofar as
taxpayers' suits are concerned, this Court had declared that it "is not devoid of
discretion as to whether or not it should be entertained," (Tan v. Macapagal, 43
SCRA 677, 680 [1972]) or that it "enjoys an open discretion to entertain the same or
not." [Sanidad v. COMELEC, 73 SCRA 333 (1976)].
xxx xxx xxx
In line with the liberal policy of this Court on locus standi, ordinary taxpayers,
members of Congress, and even association of planters, and
non-profit civic organizations were allowed to initiate and prosecute actions before
this court to question the constitutionality or validity of laws, acts, decisions, rulings,
or orders of various government agencies or instrumentalities. Among such cases
were those assailing the constitutionality of (a) R.A. No. 3836 insofar as it allows
retirement gratuity and commutation of vacation and sick leave to Senators and
Representatives and to elective officials of both Houses of Congress (Philippine
Constitution Association, Inc. v. Gimenez, 15 SCRA 479 [1965]); (b) Executive Order
No. 284, issued by President Corazon C. Aquino on 25 July 1987, which allowed
members of the cabinet, their undersecretaries, and assistant secretaries to hold
other government offices or positions (Civil Liberties Union v. Executive Secretary,
194 SCRA 317 [1991]); (c) the automatic appropriation for debt service in the
General Appropriations Act (Guingona v. Carague, 196 SCRA 221 [1991]; (d) R.A.
No. 7056 on the holding of desynchronized elections (Osmea v. Commission on
Elections, 199 SCRA 750 [1991]); (e) P.D. No. 1869 (the charter of the Philippine
Amusement and Gaming Corporation) on the ground that it is contrary to morals,
public policy, and order (Basco v. Philippine Amusement and Gaming Corp., 197
SCRA 52 [1991]); and (f) R.A. No. 6975, establishing the Philippine National Police.
(Carpio v. Executive Secretary, 206 SCRA 290 [1992]).
Other cases where we have followed a liberal policy regarding locus standi include
those attacking the validity or legality of (a) an order allowing the importation of rice
in the light of the prohibition imposed by R.A. No. 3452 (Iloilo Palay and Corn
Planters Association, Inc. v. Feliciano, 13 SCRA 377 [1965]; (b) P.D. Nos. 991 and
1033 insofar as they proposed amendments to the Constitution and P.D. No. 1031
insofar as it directed the COMELEC to supervise, control, hold, and conduct the
referendum-plebiscite on 16 October 1976 (Sanidad v. Commission on
Elections, supra); (c) the bidding for the sale of the 3,179 square meters of land at
Roppongi, Minato-ku, Tokyo, Japan (Laurel v. Garcia, 187 SCRA 797 [1990]); (d) the
approval without hearing by the Board of Investments of the amended application of
the Bataan Petrochemical Corporation to transfer the site of its plant from Bataan to
Batangas and the validity of such transfer and the shift of feedstock from naphtha
only to naphtha and/or liquefied petroleum gas (Garcia v. Board of Investments, 177
SCRA 374 [1989]; Garcia v. Board of Investments, 191 SCRA 288 [1990]); (e) the
decisions, orders, rulings, and resolutions of the Executive Secretary, Secretary of
Finance, Commissioner of Internal Revenue, Commissioner of Customs, and the
Fiscal Incentives Review Board exempting the National Power Corporation from
indirect tax and duties (Maceda v. Macaraig, 197 SCRA 771 [1991]); (f) the orders of
the Energy Regulatory Board of 5 and 6 December 1990 on the ground that the
hearings conducted on the second provisional increase in oil prices did not allow the
petitioner substantial cross-examination; (Maceda v. Energy Regulatory Board, 199
SCRA 454 [1991]); (g) Executive Order No. 478 which levied a special duty of P0.95
per liter of imported oil products (Garcia v. Executive Secretary, 211 SCRA 219
[1992]); (h) resolutions of the Commission on Elections concerning the
apportionment, by district, of the number of elective members of Sanggunians (De
Guia vs. Commission on Elections, 208 SCRA 420 [1992]); and (i) memorandum
orders issued by a Mayor affecting the Chief of Police of Pasay City (Pasay Law and
Conscience Union, Inc. v. Cuneta, 101 SCRA 662 [1980]).
In the 1975 case of Aquino v. Commission on Elections (62 SCRA 275 [1975]), this
Court, despite its unequivocal ruling that the petitioners therein had no personality to
file the petition, resolved nevertheless to pass upon the issues raised because of the
far-reaching implications of the petition. We did no less in De Guia v. COMELEC
(Supra) where, although we declared that De Guia "does not appear to have locus
standi, a standing in law, a personal or substantial interest," we brushed aside the
procedural infirmity "considering the importance of the issue involved, concerning as
it does the political exercise of qualified voters affected by the apportionment, and
petitioner alleging abuse of discretion and violation of the Constitution by
respondent."
Now on the merits of the case.
On the fare range scheme.
Section 16(c) of the Public Service Act, as amended, reads:
Sec. 16. Proceedings of the Commission, upon notice and hearing. The
Commission shall have power, upon proper notice and hearing in accordance with
the rules and provisions of this Act, subject to the limitations and exceptions
mentioned and saving provisions to the contrary:
xxx xxx xxx
(c) To fix and determine individual or joint rates, tolls, charges, classifications, or
schedules thereof, as well as commutation, mileage kilometrage, and other special
rates which shall be imposed, observed, and followed thereafter by any public
service: Provided, That the Commission may, in its discretion, approve rates
proposed by public services provisionally and without necessity of any hearing; but it
shall call a hearing thereon within thirty days thereafter, upon publication and notice
to the concerns operating in the territory affected: Provided, further, That in case the
public service equipment of an operator is used principally or secondarily for the
promotion of a private business, the net profits of said private business shall be
considered in relation with the public service of such operator for the purpose of
fixing the rates. (Emphasis ours).
xxx xxx xxx
Under the foregoing provision, the Legislature delegated to the defunct Public Service
Commission the power of fixing the rates of public services. Respondent LTFRB, the existing
regulatory body today, is likewise vested with the same under Executive Order No. 202
dated June 19, 1987. Section 5(c) of the said executive order authorizes LTFRB "to
determine, prescribe, approve and periodically review and adjust, reasonable fares, rates
and other related charges, relative to the operation of public land transportation services
provided by motorized vehicles."
Such delegation of legislative power to an administrative agency is permitted in order to adapt to the
increasing complexity of modern life. As subjects for governmental regulation multiply, so does the
difficulty of administering the laws. Hence, specialization even in legislation has become necessary.
Given the task of determining sensitive and delicate matters as
route-fixing and rate-making for the transport sector, the responsible regulatory body is entrusted
with the power of subordinate legislation. With this authority, an administrative body and in this case,
the LTFRB, may implement broad policies laid down in a statute by "filling in" the details which the
Legislature may neither have time or competence to provide. However, nowhere under the aforesaid
provisions of law are the regulatory bodies, the PSC and LTFRB alike, authorized to delegate that
power to a common carrier, a transport operator, or other public service.
In the case at bench, the authority given by the LTFRB to the provincial bus operators to set a fare
range over and above the authorized existing fare, is illegal and invalid as it is tantamount to an
undue delegation of legislative authority. Potestas delegata non delegari potest. What has been
delegated cannot be delegated. This doctrine is based on the ethical principle that such a delegated
power constitutes not only a right but a duty to be performed by the delegate through the
instrumentality of his own judgment and not through the intervening mind of another.
10
A further
delegation of such power would indeed constitute a negation of the duty in violation of the trust reposed in
the delegate mandated to discharge it directly.
11
The policy of allowing the provincial bus operators to
change and increase their fares at will would result not only to a chaotic situation but to an anarchic state
of affairs. This would leave the riding public at the mercy of transport operators who may increase fares
every hour, every day, every month or every year, whenever it pleases them or whenever they deem it
"necessary" to do so. In Panay Autobus Co. v. Philippine Railway Co.,
12
where respondent Philippine
Railway Co. was granted by the Public Service Commission the authority to change its freight rates at will,
this Court categorically declared that:
In our opinion, the Public Service Commission was not authorized by law to delegate
to the Philippine Railway Co. the power of altering its freight rates whenever it should
find it necessary to do so in order to meet the competition of road trucks and
autobuses, or to change its freight rates at will, or to regard its present rates as
maximum rates, and to fix lower rates whenever in the opinion of the Philippine
Railway Co. it would be to its advantage to do so.
The mere recital of the language of the application of the Philippine Railway Co. is
enough to show that it is untenable. The Legislature has delegated to the Public
Service Commission the power of fixing the rates of public services, but it has not
authorized the Public Service Commission to delegate that power to a common
carrier or other public service. The rates of public services like the Philippine Railway
Co. have been approved or fixed by the Public Service Commission, and any change
in such rates must be authorized or approved by the Public Service Commission
after they have been shown to be just and reasonable. The public service may, of
course, propose new rates, as the Philippine Railway Co. did in case No. 31827, but
it cannot lawfully make said new rates effective without the approval of the Public
Service Commission, and the Public Service Commission itself cannot authorize a
public service to enforce new rates without the prior approval of said rates by the
commission. The commission must approve new rates when they are submitted to it,
if the evidence shows them to be just and reasonable, otherwise it must disapprove
them. Clearly, the commission cannot determine in advance whether or not the new
rates of the Philippine Railway Co. will be just and reasonable, because it does not
know what those rates will be.
In the present case the Philippine Railway Co. in effect asked for permission to
change its freight rates at will. It may change them every day or every hour,
whenever it deems it necessary to do so in order to meet competition or whenever in
its opinion it would be to its advantage. Such a procedure would create a most
unsatisfactory state of affairs and largely defeat the purposes of the public service
law.
13
(Emphasis ours).
One veritable consequence of the deregulation of transport fares is a compounded fare. If transport
operators will be authorized to impose and collect an additional amount equivalent to 20% over and
above the authorized fare over a period of time, this will unduly prejudice a commuter who will be
made to pay a fare that has been computed in a manner similar to those of compounded bank
interest rates.
Picture this situation. On December 14, 1990, the LTFRB authorized provincial bus operators to
collect a thirty-seven (P0.37) centavo per kilometer fare for ordinary buses. At the same time, they
were allowed to impose and collect a fare range of plus or minus 15% over the authorized rate. Thus
P0.37 centavo per kilometer authorized fare plus P0.05 centavos (which is 15% of P0.37 centavos)
is equivalent to P0.42 centavos, the allowed rate in 1990. Supposing the LTFRB grants another five
(P0.05) centavo increase per kilometer in 1994, then, the base or reference for computation would
have to be P0.47 centavos (which is P0.42 + P0.05 centavos). If bus operators will exercise their
authority to impose an additional 20% over and above the authorized fare, then the fare to be
collected shall amount to P0.56 (that is, P0.47 authorized LTFRB rate plus 20% of P0.47 which is
P0.29). In effect, commuters will be continuously subjected, not only to a double fare adjustment but
to a compounding fare as well. On their part, transport operators shall enjoy a bigger chunk of the
pie. Aside from fare increase applied for, they can still collect an additional amount by virtue of the
authorized fare range. Mathematically, the situation translates into the following:
Year** LTFRB authorized Fare Range Fare to be
rate*** collected per
kilometer
1990 P0.37 15% (P0.05) P0.42
1994 P0.42 + 0.05 = 0.47 20% (P0.09) P0.56
1998 P0.56 + 0.05 = 0.61 20% (P0.12) P0.73
2002 P0.73 + 0.05 = 0.78 20% (P0.16) P0.94
Moreover, rate making or rate fixing is not an easy task. It is a delicate and sensitive government
function that requires dexterity of judgment and sound discretion with the settled goal of arriving at a
just and reasonable rate acceptable to both the public utility and the public. Several factors, in fact,
have to be taken into consideration before a balance could be achieved. A rate should not be
confiscatory as would place an operator in a situation where he will continue to operate at a loss.
Hence, the rate should enable public utilities to generate revenues sufficient to cover operational
costs and provide reasonable return on the investments. On the other hand, a rate which is too high
becomes discriminatory. It is contrary to public interest. A rate, therefore, must be reasonable and
fair and must be affordable to the end user who will utilize the services.
Given the complexity of the nature of the function of rate-fixing and its far-reaching effects on
millions of commuters, government must not relinquish this important function in favor of those who
would benefit and profit from the industry. Neither should the requisite notice and hearing be done
away with. The people, represented by reputable oppositors, deserve to be given full opportunity to
be heard in their opposition to any fare increase.
The present administrative procedure,
14
to our mind, already mirrors an orderly and satisfactory
arrangement for all parties involved. To do away with such a procedure and allow just one party, an
interested party at that, to determine what the rate should be, will undermine the right of the other parties
to due process. The purpose of a hearing is precisely to determine what a just and reasonable rate
is.
15
Discarding such procedural and constitutional right is certainly inimical to our fundamental law and to
public interest.
On the presumption of public need.
A certificate of public convenience (CPC) is an authorization granted by the LTFRB for the operation
of land transportation services for public use as required by law. Pursuant to Section 16(a) of the
Public Service Act, as amended, the following requirements must be met before a CPC may be
granted, to wit: (i) the applicant must be a citizen of the Philippines, or a corporation or co-
partnership, association or joint-stock company constituted and organized under the laws of the
Philippines, at least 60 per centum of its stock or paid-up capital must belong entirely to citizens of
the Philippines; (ii) the applicant must be financially capable of undertaking the proposed service and
meeting the responsibilities incident to its operation; and (iii) the applicant must prove that the
operation of the public service proposed and the authorization to do business will promote the public
interest in a proper and suitable manner. It is understood that there must be proper notice and
hearing before the PSC can exercise its power to issue a CPC.
While adopting in toto the foregoing requisites for the issuance of a CPC, LTFRB Memorandum
Circular No. 92-009, Part IV, provides for yet incongruous and contradictory policy guideline on the
issuance of a CPC. The guidelines states:
The issuance of a Certificate of Public Convenience is determined by public
need. The presumption of public need for a service shall be deemed in favor of the
applicant, while the burden of proving that there is no need for the proposed service
shall be the oppositor's. (Emphasis ours).
The above-quoted provision is entirely incompatible and inconsistent with Section 16(c)(iii) of the
Public Service Act which requires that before a CPC will be issued, the applicant must prove by
proper notice and hearing that the operation of the public service proposed will promote public
interest in a proper and suitable manner. On the contrary, the policy guideline states that the
presumption of public need for a public service shall be deemed in favor of the applicant. In case of
conflict between a statute and an administrative order, the former must prevail.
By its terms, public convenience or necessity generally means something fitting or suited to the
public need.
16
As one of the basic requirements for the grant of a CPC, public convenience and
necessity exists when the proposed facility or service meets a reasonable want of the public and supply a
need which the existing facilities do not adequately supply. The existence or
non-existence of public convenience and necessity is therefore a question of fact that must be
established by evidence, real and/or testimonial; empirical data; statistics and such other means
necessary, in a public hearing conducted for that purpose. The object and purpose of such procedure,
among other things, is to look out for, and protect, the interests of both the public and the existing
transport operators.
Verily, the power of a regulatory body to issue a CPC is founded on the condition that after full-dress
hearing and investigation, it shall find, as a fact, that the proposed operation is for the convenience
of the public.
17
Basic convenience is the primary consideration for which a CPC is issued, and that fact
alone must be consistently borne in mind. Also, existing operators in subject routes must be given an
opportunity to offer proof and oppose the application. Therefore, an applicant must, at all times, be
required to prove his capacity and capability to furnish the service which he has undertaken to
render.
18
And all this will be possible only if a public hearing were conducted for that purpose.
Otherwise stated, the establishment of public need in favor of an applicant reverses well-settled and
institutionalized judicial, quasi-judicial and administrative procedures. It allows the party who initiates
the proceedings to prove, by mere application, his affirmative allegations. Moreover, the offending
provisions of the LTFRB memorandum circular in question would in effect amend the Rules of Court
by adding another disputable presumption in the enumeration of 37 presumptions under Rule 131,
Section 5 of the Rules of Court. Such usurpation of this Court's authority cannot be countenanced as
only this Court is mandated by law to promulgate rules concerning pleading, practice and
procedure.
19

Deregulation, while it may be ideal in certain situations, may not be ideal at all in our country given
the present circumstances. Advocacy of liberalized franchising and regulatory process is tantamount
to an abdication by the government of its inherent right to exercise police power, that is, the right of
government to regulate public utilities for protection of the public and the utilities themselves.
While we recognize the authority of the DOTC and the LTFRB to issue administrative orders to
regulate the transport sector, we find that they committed grave abuse of discretion in issuing DOTC
Department Order
No. 92-587 defining the policy framework on the regulation of transport services and LTFRB
Memorandum Circular No. 92-009 promulgating the implementing guidelines on DOTC Department
Order No. 92-587, the said administrative issuances being amendatory and violative of the Public
Service Act and the Rules of Court. Consequently, we rule that the twenty (20%) per centum fare
increase imposed by respondent PBOAP on March 16, 1994 without the benefit of a petition and a
public hearing is null and void and of no force and effect. No grave abuse of discretion however was
committed in the issuance of DOTC Memorandum Order No. 90-395 and DOTC Memorandum
dated October 8, 1992, the same being merely internal communications between administrative
officers.
WHEREFORE, in view of the foregoing, the instant petition is hereby GRANTED and the challenged
administrative issuances and orders, namely: DOTC Department Order No. 92-587, LTFRB
Memorandum Circular
No. 92-009, and the order dated March 24, 1994 issued by respondent LTFRB are hereby
DECLARED contrary to law and invalid insofar as they affect provisions therein (a) delegating to
provincial bus and jeepney operators the authority to increase or decrease the duly prescribed
transportation fares; and (b) creating a presumption of public need for a service in favor of the
applicant for a certificate of public convenience and placing the burden of proving that there is no
need for the proposed service to the oppositor.
The Temporary Restraining Order issued on June 20, 1994 is hereby MADE PERMANENT insofar
as it enjoined the bus fare rate increase granted under the provisions of the aforementioned
administrative circulars, memoranda and/or orders declared invalid.
No pronouncement as to costs.
SO ORDERED.


EN BANC
[G.R. No. 141284. August 15, 2000]
INTEGRATED BAR OF THE PHILIPPINES, petitioner, vs. HON.
RONALDO B. ZAMORA, GEN. PANFILO M. LACSON, GEN.
EDGAR B. AGLIPAY, and GEN. ANGELO REYES, respondents.
D E C I S I O N
KAPUNAN, J .:
At bar is a special civil action for certiorari and prohibition with prayer for issuance of
a temporary restraining order seeking to nullify on constitutional grounds the order of
President Joseph Ejercito Estrada commanding the deployment of the Philippine
Marines (the Marines) to join the Philippine National Police (the PNP) in visibility
patrols around the metropolis.
In view of the alarming increase in violent crimes in Metro Manila, like
robberies, kidnappings and carnappings, the President, in a verbal directive, ordered
the PNP and the Marines to conduct joint visibility patrols for the purpose of crime
prevention and suppression. The Secretary of National Defense, the Chief of Staff of
the Armed Forces of the Philippines (the AFP), the Chief of the PNP and the Secretary
of the Interior and Local Government were tasked to execute and implement the said
order. In compliance with the presidential mandate, the PNP Chief, through Police
Chief Superintendent Edgar B. Aglipay, formulated Letter of Instruction 02/2000
[1]
(the
LOI) which detailed the manner by which the joint visibility patrols, called Task
Force Tulungan, would be conducted.
[2]
Task Force Tulungan was placed under the
leadership of the Police Chief of Metro Manila.
Subsequently, the President confirmed his previous directive on the deployment of
the Marines in a Memorandum, dated 24 January 2000, addressed to the Chief of Staff
of the AFP and the PNP Chief.
[3]
In the Memorandum, the President expressed his
desire to improve the peace and order situation in Metro Manila through a more
effective crime prevention program including increased police patrols.
[4]
The President
further stated that to heighten police visibility in the metropolis, augmentation from the
AFP is necessary.
[5]
Invoking his powers as Commander-in-Chief under Section 18,
Article VII of the Constitution, the President directed the AFP Chief of Staff and PNP
Chief to coordinate with each other for the proper deployment and utilization of the
Marines to assist the PNP in preventing or suppressing criminal or lawless
violence.
[6]
Finally, the President declared that the services of the Marines in the anti-
crime campaign are merely temporary in nature and for a reasonable period only, until
such time when the situation shall have improved.
[7]

The LOI explains the concept of the PNP-Philippine Marines joint visibility patrols as
follows:
x x x
2. PURPOSE:
The Joint Implementing Police Visibility Patrols between the PNP NCRPO and
the Philippine Marines partnership in the conduct of visibility patrols in Metro
Manila for the suppression of crime prevention and other serious threats to
national security.
3. SITUATION:
Criminal incidents in Metro Manila have been perpetrated not only by ordinary
criminals but also by organized syndicates whose members include active and
former police/military personnel whose training, skill, discipline and firepower
prove well-above the present capability of the local police alone to
handle. The deployment of a joint PNP NCRPO-Philippine Marines in the
conduct of police visibility patrol in urban areas will reduce the incidence of
crimes specially those perpetrated by active or former police/military
personnel.
4. MISSION:
The PNP NCRPO will organize a provisional Task Force to conduct joint
NCRPO-PM visibility patrols to keep Metro Manila streets crime-free, through
a sustained street patrolling to minimize or eradicate all forms of high-profile
crimes especially those perpetrated by organized crime syndicates whose
members include those that are well-trained, disciplined and well-armed active
or former PNP/Military personnel.
5. CONCEPT IN JOINT VISIBILITY PATROL OPERATIONS:
a. The visibility patrols shall be conducted jointly by the NCRPO [National
Capital Regional Police Office] and the Philippine Marines to curb criminality
in Metro Manila and to preserve the internal security of the state against
insurgents and other serious threat to national security, although the primary
responsibility over Internal Security Operations still rests upon the AFP.
b. The principle of integration of efforts shall be applied to eradicate all forms
of high-profile crimes perpetrated by organized crime syndicates operating in
Metro Manila. This concept requires the military and police to work cohesively
and unify efforts to ensure a focused, effective and holistic approach in
addressing crime prevention. Along this line, the role of the military and police
aside from neutralizing crime syndicates is to bring a wholesome atmosphere
wherein delivery of basic services to the people and development is achieved.
Hand-in-hand with this joint NCRPO-Philippine Marines visibility patrols, local
Police Units are responsible for the maintenance of peace and order in their
locality.
c. To ensure the effective implementation of this project, a provisional Task
Force TULUNGAN shall be organized to provide the mechanism, structure,
and procedures for the integrated planning, coordinating, monitoring and
assessing the security situation.
xxx.
[8]

The selected areas of deployment under the LOI are: Monumento Circle, North
Edsa (SM City), Araneta Shopping Center, Greenhills, SM Megamall, Makati
Commercial Center, LRT/MRT Stations and the NAIA and Domestic Airport.
[9]

On 17 January 2000, the Integrated Bar of the Philippines (the IBP) filed the
instant petition to annul LOI 02/2000 and to declare the deployment of the Philippine
Marines, null and void and unconstitutional, arguing that:
I
THE DEPLOYMENT OF THE PHILIPPINE MARINES IN METRO MANILA IS
VIOLATIVE OF THE CONSTITUTION, IN THAT:
A) NO EMERGENCY SITUATION OBTAINS IN METRO MANILA AS WOULD
JUSTIFY, EVEN ONLY REMOTELY, THE DEPLOYMENT OF SOLDIERS
FOR LAW ENFORCEMENT WORK; HENCE, SAID DEPLOYMENT IS IN
DEROGATION OF ARTICLE II, SECTION 3 OF THE CONSTITUTION;
B) SAID DEPLOYMENT CONSTITUTES AN INSIDIOUS INCURSION BY
THE MILITARY IN A CIVILIAN FUNCTION OF GOVERNMENT (LAW
ENFORCEMENT) IN DEROGATION OF ARTICLE XVI, SECTION 5 (4), OF
THE CONSTITUTION;
C) SAID DEPLOYMENT CREATES A DANGEROUS TENDENCY TO RELY
ON THE MILITARY TO PERFORM THE CIVILIAN FUNCTIONS OF THE
GOVERNMENT.
II
IN MILITARIZING LAW ENFORCEMENT IN METRO MANILA, THE
ADMINISTRATION IS UNWITTINGLY MAKING THE MILITARY MORE
POWERFUL THAN WHAT IT SHOULD REALLY BE UNDER THE
CONSTITUTION.
[10]

Asserting itself as the official organization of Filipino lawyers tasked with the
bounden duty to uphold the rule of law and the Constitution, the IBP questions the
validity of the deployment and utilization of the Marines to assist the PNP in law
enforcement.
Without granting due course to the petition, the Court in a Resolution,
[11]
dated 25
January 2000, required the Solicitor General to file his Comment on the petition. On 8
February 2000, the Solicitor General submitted his Comment.
The Solicitor General vigorously defends the constitutionality of the act of the
President in deploying the Marines, contending, among others, that petitioner has no
legal standing; that the question of deployment of the Marines is not proper for judicial
scrutiny since the same involves a political question; that the organization and conduct
of police visibility patrols, which feature the team-up of one police officer and one
Philippine Marine soldier, does not violate the civilian supremacy clause in the
Constitution.
The issues raised in the present petition are: (1) Whether or not petitioner has legal
standing; (2) Whether or not the Presidents factual determination of the necessity of
calling the armed forces is subject to judicial review; and, (3) Whether or not the calling
of the armed forces to assist the PNP in joint visibility patrols violates the
constitutional provisions on civilian supremacy over the military and the civilian
character of the PNP.
The petition has no merit.
First, petitioner failed to sufficiently show that it is in possession of the requisites of
standing to raise the issues in the petition. Second, the President did not commit grave
abuse of discretion amounting to lack or excess of jurisdiction nor did he commit a
violation of the civilian supremacy clause of the Constitution.
The power of judicial review is set forth in Section 1, Article VIII of the Constitution,
to wit:
Section 1. The judicial power shall be vested in one Supreme Court and in
such lower courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable,
and to determine whether or not there has been grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government.
When questions of constitutional significance are raised, the Court can exercise its
power of judicial review only if the following requisites are complied with, namely:
(1) the existence of an actual and appropriate case; (2) a personal and substantial
interest of the party raising the constitutional question; (3) the exercise of judicial review
is pleaded at the earliest opportunity; and (4) the constitutional question is the lis
mota of the case.
[12]

The IBP has not sufficiently complied with the requisites of standing in this case.
Legal standing or locus standi has been defined as a personal and substantial
interest in the case such that the party has sustained or will sustain direct injury as a
result of the governmental act that is being challenged.
[13]
The term interest means a
material interest, an interest in issue affected by the decree, as distinguished from mere
interest in the question involved, or a mere incidental interest.
[14]
The gist of the question
of standing is whether a party alleges such personal stake in the outcome of the
controversy as to assure that concrete adverseness which sharpens the presentation of
issues upon which the court depends for illumination of difficult constitutional
questions.
[15]

In the case at bar, the IBP primarily anchors its standing on its alleged responsibility
to uphold the rule of law and the Constitution. Apart from this declaration, however, the
IBP asserts no other basis in support of its locus standi. The mere invocation by the
IBP of its duty to preserve the rule of law and nothing more, while undoubtedly true, is
not sufficient to clothe it with standing in this case. This is too general an interest which
is shared by other groups and the whole citizenry. Based on the standards above-
stated, the IBP has failed to present a specific and substantial interest in the resolution
of the case. Its fundamental purpose which, under Section 2, Rule 139-A of the Rules
of Court, is to elevate the standards of the law profession and to improve the
administration of justice is alien to, and cannot be affected by the deployment of the
Marines. It should also be noted that the interest of the National President of the IBP
who signed the petition, is his alone, absent a formal board resolution authorizing him to
file the present action. To be sure, members of the BAR, those in the judiciary included,
have varying opinions on the issue. Moreover, the IBP, assuming that it has duly
authorized the National President to file the petition, has not shown any specific injury
which it has suffered or may suffer by virtue of the questioned governmental
act. Indeed, none of its members, whom the IBP purportedly represents, has sustained
any form of injury as a result of the operation of the joint visibility patrols. Neither is it
alleged that any of its members has been arrested or that their civil liberties have been
violated by the deployment of the Marines. What the IBP projects as injurious is the
supposed militarization of law enforcement which might threaten Philippine democratic
institutions and may cause more harm than good in the long run. Not only is the
presumed injury not personal in character, it is likewise too vague, highly speculative
and uncertain to satisfy the requirement of standing. Since petitioner has not
successfully established a direct and personal injury as a consequence of the
questioned act, it does not possess the personality to assail the validity of the
deployment of the Marines. This Court, however, does not categorically rule that the
IBP has absolutely no standing to raise constitutional issues now or in the future. The
IBP must, by way of allegations and proof, satisfy this Court that it has sufficient stake to
obtain judicial resolution of the controversy.
Having stated the foregoing, it must be emphasized that this Court has the
discretion to take cognizance of a suit which does not satisfy the requirement of legal
standing when paramount interest is involved.
[16]
In not a few cases, the Court has
adopted a liberal attitude on the locus standi of a petitioner where the petitioner is able
to craft an issue of transcendental significance to the people.
[17]
Thus, when the issues
raised are of paramount importance to the public, the Court may brush aside
technicalities of procedure.
[18]
In this case, a reading of the petition shows that the IBP
has advanced constitutional issues which deserve the attention of this Court in view of
their seriousness, novelty and weight as precedents. Moreover, because peace and
order are under constant threat and lawless violence occurs in increasing tempo,
undoubtedly aggravated by the Mindanao insurgency problem, the legal controversy
raised in the petition almost certainly will not go away. It will stare us in the face
again. It, therefore, behooves the Court to relax the rules on standing and to resolve
the issue now, rather than later.
The President did not commit grave abuse of discretion in calling out the Marines.

In the case at bar, the bone of contention concerns the factual determination of the
President of the necessity of calling the armed forces, particularly the Marines, to aid
the PNP in visibility patrols. In this regard, the IBP admits that the deployment of the
military personnel falls under the Commander-in-Chief powers of the President as
stated in Section 18, Article VII of the Constitution, specifically, the power to call out the
armed forces to prevent or suppress lawless violence, invasion or rebellion. What the
IBP questions, however, is the basis for the calling of the Marines under the aforestated
provision. According to the IBP, no emergency exists that would justify the need for the
calling of the military to assist the police force. It contends that no lawless violence,
invasion or rebellion exist to warrant the calling of the Marines. Thus, the IBP prays that
this Court review the sufficiency of the factual basis for said troop [Marine]
deployment.
[19]

The Solicitor General, on the other hand, contends that the issue pertaining to the
necessity of calling the armed forces is not proper for judicial scrutiny since it involves a
political question and the resolution of factual issues which are beyond the review
powers of this Court.
As framed by the parties, the underlying issues are the scope of presidential powers
and limits, and the extent of judicial review. But, while this Court gives considerable
weight to the parties formulation of the issues, the resolution of the controversy may
warrant a creative approach that goes beyond the narrow confines of the issues
raised. Thus, while the parties are in agreement that the power exercised by the
President is the power to call out the armed forces, the Court is of the view that the
power involved may be no more than the maintenance of peace and order and
promotion of the general welfare.
[20]
For one, the realities on the ground do not show that
there exist a state of warfare, widespread civil unrest or anarchy. Secondly, the full
brunt of the military is not brought upon the citizenry, a point discussed in the latter part
of this decision. In the words of the late Justice Irene Cortes in Marcos v. Manglapus:
More particularly, this case calls for the exercise of the Presidents powers as
protector of the peace. [Rossiter, The American Presidency]. The power of
the President to keep the peace is not limited merely to exercising the
commander-in-chief powers in times of emergency or to leading the State
against external and internal threats to its existence. The President is not only
clothed with extraordinary powers in times of emergency, but is also tasked
with attending to the day-to-day problems of maintaining peace and order and
ensuring domestic tranquility in times when no foreign foe appears on the
horizon. Wide discretion, within the bounds of law, in fulfilling presidential
duties in times of peace is not in any way diminished by the relative want of an
emergency specified in the commander-in-chief provision. For in making the
President commander-in-chief the enumeration of powers that follow cannot
be said to exclude the Presidents exercising as Commander-in-Chief powers
short of the calling of the armed forces, or suspending the privilege of the writ
of habeas corpus or declaring martial law, in order to keep the peace, and
maintain public order and security.
xxx
[21]

Nonetheless, even if it is conceded that the power involved is the Presidents power
to call out the armed forces to prevent or suppress lawless violence, invasion or
rebellion, the resolution of the controversy will reach a similar result.
We now address the Solicitor Generals argument that the issue involved is not
susceptible to review by the judiciary because it involves a political question, and thus,
not justiciable.
As a general proposition, a controversy is justiciable if it refers to a matter which is
appropriate for court review.
[22]
It pertains to issues which are inherently susceptible of
being decided on grounds recognized by law. Nevertheless, the Court does not
automatically assume jurisdiction over actual constitutional cases brought before it even
in instances that are ripe for resolution. One class of cases wherein the Court hesitates
to rule on are political questions. The reason is that political questions are concerned
with issues dependent upon the wisdom, not the legality, of a particular act or measure
being assailed. Moreover, the political question being a function of the separation of
powers, the courts will not normally interfere with the workings of another co-equal
branch unless the case shows a clear need for the courts to step in to uphold the law
and the Constitution.
As Taada v. Cuenco
[23]
puts it, political questions refer to those questions which,
under the Constitution, are to be decided by the people in their sovereign capacity, or in
regard to which full discretionary authority has been delegated to the legislative or
executive branch of government. Thus, if an issue is clearly identified by the text of the
Constitution as matters for discretionary action by a particular branch of government or
to the people themselves then it is held to be a political question. In the classic
formulation of Justice Brennan in Baker v. Carr,
[24]
[p]rominent on the surface of any
case held to involve a political question is found a textually demonstrable constitutional
commitment of the issue to a coordinate political department; or a lack of judicially
discoverable and manageable standards for resolving it; or the impossibility of deciding
without an initial policy determination of a kind clearly for nonjudicial discretion; or the
impossibility of a courts undertaking independent resolution without expressing lack of
the respect due coordinate branches of government; or an unusual need for
unquestioning adherence to a political decision already made; or the potentiality of
embarassment from multifarious pronouncements by various departments on the one
question.
The 1987 Constitution expands the concept of judicial review by providing that
(T)he Judicial power shall be vested in one Supreme Court and in such lower courts as
may be established by law. Judicial power includes the duty of the courts of justice to
settle actual controversies involving rights which are legally demandable and
enforceable, and to determine whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government.
[25]
Under this definition, the Court cannot agree with
the Solicitor General that the issue involved is a political question beyond the jurisdiction
of this Court to review. When the grant of power is qualified, conditional or subject to
limitations, the issue of whether the prescribed qualifications or conditions have been
met or the limitations respected, is justiciable - the problem being one of legality or
validity, not its wisdom.
[26]
Moreover, the jurisdiction to delimit constitutional boundaries
has been given to this Court.
[27]
When political questions are involved, the Constitution
limits the determination as to whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of the official whose action is
being questioned.
[28]

By grave abuse of discretion is meant simply capricious or whimsical exercise of
judgment that is patent and gross as to amount to an evasion of positive duty or a
virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law,
as where the power is exercised in an arbitrary and despotic manner by reason of
passion or hostility.
[29]
Under this definition, a court is without power to directly decide
matters over which full discretionary authority has been delegated. But while this Court
has no power to substitute its judgment for that of Congress or of the President, it may
look into the question of whether such exercise has been made in grave abuse of
discretion.
[30]
A showing that plenary power is granted either department of government,
may not be an obstacle to judicial inquiry, for the improvident exercise or abuse thereof
may give rise to justiciable controversy.
[31]

When the President calls the armed forces to prevent or suppress lawless violence,
invasion or rebellion, he necessarily exercises a discretionary power solely vested in his
wisdom. This is clear from the intent of the framers and from the text of the Constitution
itself. The Court, thus, cannot be called upon to overrule the Presidents wisdom or
substitute its own. However, this does not prevent an examination of whether such
power was exercised within permissible constitutional limits or whether it was exercised
in a manner constituting grave abuse of discretion. In view of the constitutional intent to
give the President full discretionary power to determine the necessity of calling out the
armed forces, it is incumbent upon the petitioner to show that the Presidents decision is
totally bereft of factual basis. The present petition fails to discharge such heavy burden
as there is no evidence to support the assertion that there exist no justification for
calling out the armed forces. There is, likewise, no evidence to support the proposition
that grave abuse was committed because the power to call was exercised in such a
manner as to violate the constitutional provision on civilian supremacy over the
military. In the performance of this Courts duty of purposeful hesitation
[32]
before
declaring an act of another branch as unconstitutional, only where such grave abuse of
discretion is clearly shown shall the Court interfere with the Presidents judgment. To
doubt is to sustain.
There is a clear textual commitment under the Constitution to bestow on the
President full discretionary power to call out the armed forces and to determine the
necessity for the exercise of such power. Section 18, Article VII of the Constitution,
which embodies the powers of the President as Commander-in-Chief, provides in part:
The President shall be the Commander-in-Chief of all armed forces of the
Philippines and whenever it becomes necessary, he may call out such armed
forces to prevent or suppress lawless violence, invasion or rebellion. In case
of invasion or rebellion, when the public safety requires it, he may, for a period
not exceeding sixty days, suspend the privilege of the writ ofhabeas corpus, or
place the Philippines or any part thereof under martial law.
x x x
The full discretionary power of the President to determine the factual basis for the
exercise of the calling out power is also implied and further reinforced in the rest of
Section 18, Article VII which reads, thus:
x x x
Within forty-eight hours from the proclamation of martial law or the suspension
of the privilege of the writ of habeas corpus, the President shall submit a
report in person or in writing to the Congress. The Congress, voting jointly, by
a vote of at least a majority of all its Members in regular or special session,
may revoke such proclamation or suspension, which revocation shall not be
set aside by the President. Upon the initiative of the President, the Congress
may, in the same manner, extend such proclamation or suspension for a
period to be determined by the Congress, if the invasion or rebellion shall
persist and public safety requires it.
The Congress, if not in session, shall within twenty-four hours following such
proclamation or suspension, convene in accordance with its rules without
need of a call.
The Supreme Court may review, in an appropriate proceeding filed by any
citizen, the sufficiency of the factual basis of the proclamation of martial law or
the suspension of the privilege of the writ or the extension thereof, and must
promulgate its decision thereon within thirty days from its filing.
A state of martial law does not suspend the operation of the Constitution, nor
supplant the functioning of the civil courts or legislative assemblies, nor
authorize the conferment of jurisdiction on military courts and agencies over
civilians where civil courts are able to function, nor automatically suspend the
privilege of the writ.
The suspension of the privilege of the writ shall apply only to persons judicially
charged for rebellion or offenses inherent in or directly connected with
invasion.
During the suspension of the privilege of the writ, any person thus arrested or
detained shall be judicially charged within three days, otherwise he shall be
released.
Under the foregoing provisions, Congress may revoke such proclamation or
suspension and the Court may review the sufficiency of the factual basis
thereof. However, there is no such equivalent provision dealing with the revocation or
review of the Presidents action to call out the armed forces. The distinction places the
calling out power in a different category from the power to declare martial law and the
power to suspend the privilege of the writ of habeas corpus, otherwise, the framers of
the Constitution would have simply lumped together the three powers and provided for
their revocation and review without any qualification. Expressio unius est exclusio
alterius. Where the terms are expressly limited to certain matters, it may not, by
interpretation or construction, be extended to other matters.
[33]
That the intent of the
Constitution is exactly what its letter says, i.e., that the power to call is fully
discretionary to the President, is extant in the deliberation of the Constitutional
Commission, to wit:
FR. BERNAS. It will not make any difference. I may add that there is a
graduated power of the President as Commander-in-Chief. First, he can call
out such Armed Forces as may be necessary to suppress lawless violence;
then he can suspend the privilege of the writ of habeas corpus, then he can
impose martial law. This is a graduated sequence.
When he judges that it is necessary to impose martial law or suspend the
privilege of the writ of habeas corpus, his judgment is subject to review. We
are making it subject to review by the Supreme Court and subject to
concurrence by the National Assembly. But when he exercises this lesser
power of calling on the Armed Forces, when he says it is necessary, it is my
opinion that his judgment cannot be reviewed by anybody.
x x x
FR. BERNAS. Let me just add that when we only have imminent danger, the
matter can be handled by the first sentence: The President may call out such
armed forces to prevent or suppress lawless violence, invasion or rebellion.
So we feel that that is sufficient for handling imminent danger.
MR. DE LOS REYES. So actually, if a President feels that there is imminent
danger, the matter can be handled by the First Sentence: The
President....may call out such Armed Forces to prevent or suppress lawless
violence, invasion or rebellion. So we feel that that is sufficient for handling
imminent danger, of invasion or rebellion, instead of imposing martial law or
suspending the writ of habeas corpus, he must necessarily have to call the
Armed Forces of the Philippines as their Commander-in-Chief. Is that the
idea?
MR. REGALADO. That does not require any concurrence by the legislature
nor is it subject to judicial review.
[34]

The reason for the difference in the treatment of the aforementioned powers
highlights the intent to grant the President the widest leeway and broadest discretion in
using the power to call out because it is considered as the lesser and more benign
power compared to the power to suspend the privilege of the writ of habeas corpus and
the power to impose martial law, both of which involve the curtailment and suppression
of certain basic civil rights and individual freedoms, and thus necessitating safeguards
by Congress and review by this Court.
Moreover, under Section 18, Article VII of the Constitution, in the exercise of the
power to suspend the privilege of the writ of habeas corpus or to impose martial law,
two conditions must concur: (1) there must be an actual invasion or rebellion and, (2)
public safety must require it. These conditions are not required in the case of the power
to call out the armed forces. The only criterion is that whenever it becomes necessary,
the President may call the armed forces to prevent or suppress lawless violence,
invasion or rebellion." The implication is that the President is given full discretion and
wide latitude in the exercise of the power to call as compared to the two other powers.
If the petitioner fails, by way of proof, to support the assertion that the President
acted without factual basis, then this Court cannot undertake an independent
investigation beyond the pleadings. The factual necessity of calling out the armed
forces is not easily quantifiable and cannot be objectively established since matters
considered for satisfying the same is a combination of several factors which are not
always accessible to the courts. Besides the absence of textual standards that the court
may use to judge necessity, information necessary to arrive at such judgment might
also prove unmanageable for the courts. Certain pertinent information might be difficult
to verify, or wholly unavailable to the courts. In many instances, the evidence upon
which the President might decide that there is a need to call out the armed forces may
be of a nature not constituting technical proof.
On the other hand, the President as Commander-in-Chief has a vast intelligence
network to gather information, some of which may be classified as highly confidential or
affecting the security of the state. In the exercise of the power to call, on-the-spot
decisions may be imperatively necessary in emergency situations to avert great loss of
human lives and mass destruction of property. Indeed, the decision to call out the
military to prevent or suppress lawless violence must be done swiftly and decisively if it
were to have any effect at all. Such a scenario is not farfetched when we consider the
present situation in Mindanao, where the insurgency problem could spill over the other
parts of the country. The determination of the necessity for the calling out power if
subjected to unfettered judicial scrutiny could be a veritable prescription for disaster, as
such power may be unduly straitjacketed by an injunction or a temporary restraining
order every time it is exercised.
Thus, it is the unclouded intent of the Constitution to vest upon the President, as
Commander-in-Chief of the Armed Forces, full discretion to call forth the military when
in his judgment it is necessary to do so in order to prevent or suppress lawless violence,
invasion or rebellion. Unless the petitioner can show that the exercise of such
discretion was gravely abused, the Presidents exercise of judgment deserves to be
accorded respect from this Court.
The President has already determined the necessity and factual basis for calling the
armed forces. In his Memorandum, he categorically asserted that, [V]iolent crimes like
bank/store robberies, holdups, kidnappings and carnappings continue to occur in Metro
Manila...
[35]
We do not doubt the veracity of the Presidents assessment of the situation,
especially in the light of present developments. The Court takes judicial notice of the
recent bombings perpetrated by lawless elements in the shopping malls, public utilities,
and other public places. These are among the areas of deployment described in the
LOI 2000. Considering all these facts, we hold that the President has sufficient factual
basis to call for military aid in law enforcement and in the exercise of this constitutional
power.
The deployment of the Marines does not violate the civilian supremacy clause nor
does it infringe the civilian character of the police force.
Prescinding from its argument that no emergency situation exists to justify the
calling of the Marines, the IBP asserts that by the deployment of the Marines, the
civilian task of law enforcement is militarized in violation of Section 3, Article II
[36]
of the
Constitution.
We disagree. The deployment of the Marines does not constitute a breach of the
civilian supremacy clause. The calling of the Marines in this case constitutes
permissible use of military assets for civilian law enforcement. The participation of the
Marines in the conduct of joint visibility patrols is appropriately circumscribed. The
limited participation of the Marines is evident in the provisions of the LOI itself, which
sufficiently provides the metes and bounds of the Marines authority. It is noteworthy
that the local police forces are the ones in charge of the visibility patrols at all times, the
real authority belonging to the PNP. In fact, the Metro Manila Police Chief is the overall
leader of the PNP-Philippine Marines joint visibility patrols.
[37]
Under the LOI, the police
forces are tasked to brief or orient the soldiers on police patrol procedures.
[38]
It is their
responsibility to direct and manage the deployment of the Marines.
[39]
It is, likewise, their
duty to provide the necessary equipment to the Marines and render logistical support to
these soldiers.
[40]
In view of the foregoing, it cannot be properly argued that military
authority is supreme over civilian authority. Moreover, the deployment of the Marines to
assist the PNP does not unmake the civilian character of the police force. Neither does
it amount to an insidious incursion of the military in the task of law enforcement in
violation of Section 5(4), Article XVI of the Constitution.
[41]

In this regard, it is not correct to say that General Angelo Reyes, Chief of Staff of
the AFP, by his alleged involvement in civilian law enforcement, has been virtually
appointed to a civilian post in derogation of the aforecited provision. The real authority
in these operations, as stated in the LOI, is lodged with the head of a civilian institution,
the PNP, and not with the military. Such being the case, it does not matter whether the
AFP Chief actually participates in the Task Force Tulungan since he does not exercise
any authority or control over the same. Since none of the Marines was incorporated or
enlisted as members of the PNP, there can be no appointment to civilian position to
speak of. Hence, the deployment of the Marines in the joint visibility patrols does not
destroy the civilian character of the PNP.
Considering the above circumstances, the Marines render nothing more than
assistance required in conducting the patrols. As such, there can be no insidious
incursion of the military in civilian affairs nor can there be a violation of the civilian
supremacy clause in the Constitution.
It is worth mentioning that military assistance to civilian authorities in various
forms persists in Philippine jurisdiction. The Philippine experience reveals that it is not
averse to requesting the assistance of the military in the implementation and execution
of certain traditionally civil functions. As correctly pointed out by the Solicitor General,
some of the multifarious activities wherein military aid has been rendered, exemplifying
the activities that bring both the civilian and the military together in a relationship of
cooperation, are:
1. Elections;
[42]

2. Administration of the Philippine National Red Cross;
[43]

3. Relief and rescue operations during calamities and disasters;
[44]

4. Amateur sports promotion and development;
[45]

5. Development of the culture and the arts;
[46]

6. Conservation of natural resources;
[47]

7. Implementation of the agrarian reform program;
[48]

8. Enforcement of customs laws;
[49]

9. Composite civilian-military law enforcement activities;
[50]

10. Conduct of licensure examinations;
[51]

11. Conduct of nationwide tests for elementary and high school students;
[52]

12. Anti-drug enforcement activities;
[53]

13. Sanitary inspections;
[54]

14. Conduct of census work;
[55]

15. Administration of the Civil Aeronautics Board;
[56]

16. Assistance in installation of weather forecasting devices;
[57]

17. Peace and order policy formulation in local government units.
[58]

This unquestionably constitutes a gloss on executive power resulting from a
systematic, unbroken, executive practice, long pursued to the knowledge of Congress
and, yet, never before questioned.
[59]
What we have here is mutual support and
cooperation between the military and civilian authorities, not derogation of civilian
supremacy.
In the United States, where a long tradition of suspicion and hostility towards the
use of military force for domestic purposes has persisted,
[60]
and whose Constitution,
unlike ours, does not expressly provide for the power to call, the use of military
personnel by civilian law enforcement officers is allowed under circumstances similar to
those surrounding the present deployment of the Philippine Marines. Under the Posse
Comitatus Act
[61]
of the US, the use of the military in civilian law enforcement is generally
prohibited, except in certain allowable circumstances. A provision of the Act states:
1385. Use of Army and Air Force as posse comitatus
Whoever, except in cases and under circumstances expressly authorized by
the Constitution or Act of Congress, willfully uses any part of the Army or the
Air Force as posse comitatus or otherwise to execute the laws shall be fined
not more than $10,000 or imprisoned not more than two years, or both.
[62]

To determine whether there is a violation of the Posse Comitatus Act in the use of
military personnel, the US courts
[63]
apply the following standards, to wit:
Were Army or Air Force personnel used by the civilian law enforcement
officers at Wounded Knee in such a manner that the military personnel
subjected the citizens to the exercise of military power which was regulatory,
proscriptive, or compulsory
[64]
George Washington Law Review, pp. 404-433 (1986), which
discusses the four divergent standards for assessing acceptable involvement of military personnel in civil
law enforcement. See likewise HONORED IN THE BREECH: PRESIDENTIAL AUTHORITY TO
EXECUTE THE LAWS WITH MILITARY FORCE, 83 Yale Law Journal, pp. 130-152, 1973. 64 in
nature, either presently or prospectively?
x x x
When this concept is transplanted into the present legal context, we take it to
mean that military involvement, even when not expressly authorized by the
Constitution or a statute, does not violate the Posse Comitatus Act unless it
actually regulates, forbids or compels some conduct on the part of those
claiming relief. A mere threat of some future injury would be
insufficient.(emphasis supplied)
Even if the Court were to apply the above rigid standards to the present case to
determine whether there is permissible use of the military in civilian law enforcement,
the conclusion is inevitable that no violation of the civilian supremacy clause in the
Constitution is committed. On this point, the Court agrees with the observation of the
Solicitor General:
3. The designation of tasks in Annex A
[65]
does not constitute the exercise of
regulatory, proscriptive, or compulsory military power. First, the soldiers do not control or direct the
operation. This is evident from Nos. 6,
[66]
8(k)
[67]
and 9(a)
[68]
of Annex A. These soldiers, second,
also have no power to prohibit or condemn. In No. 9(d)
[69]
of Annex A, all arrested persons are
brought to the nearest police stations for proper disposition. And last, these soldiers apply no
coercive force. The materials or equipment issued to them, as shown in No. 8(c)
[70]
of Annex A, are
all low impact and defensive in character. The conclusion is that there being no exercise of
regulatory, proscriptive or compulsory military power, the deployment of a handful of Philippine
Marines constitutes no impermissible use of military power for civilian law enforcement.
[71]

It appears that the present petition is anchored on fear that once the armed forces
are deployed, the military will gain ascendancy, and thus place in peril our cherished
liberties. Such apprehensions, however, are unfounded. The power to call the armed
forces is just that - calling out the armed forces. Unless, petitioner IBP can show,
which it has not, that in the deployment of the Marines, the President has violated the
fundamental law, exceeded his authority or jeopardized the civil liberties of the people,
this Court is not inclined to overrule the Presidents determination of the factual
basis for the calling of the Marines to prevent or suppress lawless violence.
One last point. Since the institution of the joint visibility patrol in January, 2000, not
a single citizen has complained that his political or civil rights have been violated as a
result of the deployment of the Marines. It was precisely to safeguard peace, tranquility
and the civil liberties of the people that the joint visibility patrol was conceived. Freedom
and democracy will be in full bloom only when people feel secure in their homes and in
the streets, not when the shadows of violence and anarchy constantly lurk in their midst.
WHEREFORE, premises considered, the petition is hereby DISMISSED.
SO ORDERED.
Davide, Jr., C.J., Melo, Purisima, Pardo, Buena, Gonzaga-Reyes, Ynares-
Santiago, and De Leon, Jr., JJ., concur.
Bellosillo, J., on official leave.
Puno, J., see separate opinion.
Vitug, J., see separate opinion.
Mendoza, J., see concurring and dissenting opinion.
Panganiban, J., in the result.
Quisumbing, J., joins the opinion of J. Mendoza.
SEPARATE OPINION
PUNO, J .:
If the case at bar is significant, it is because of the government attempt to foist
the political question doctrine to shield an executive act done in the exercise of the
commander-in-chief powers from judicial scrutiny. If the attempt succeeded, it would
have diminished the power of judicial review and weakened the checking
authority of this Court over the Chief Executive when he exercises his
commander-in-chief powers. The attempt should remind us of the tragedy that
befell the country when this Court sought refuge in the political question doctrine
and forfeited its most important role as protector of the civil and political rights of
our people. The ongoing conflict in Mindanao may worsen and can force the
Chief Executive to resort to the use of his greater commander-in-chief powers,
hence, this Court should be extra cautious in assaying similar attempts. A laid
back posture may not sit well with our people considering that the 1987
Constitution strengthened the checking powers of this Court and expanded its
jurisdiction precisely to stop any act constituting xxx grave abuse of jurisdiction
xxx on the part of any branch or instrumentality of the Government.
1

The importance of the issue at bar includes this humble separate opinion. We can
best perceive the different intersecting dimensions of the political question doctrine by
viewing them from the broader canvass of history. Political questions are defined as
those questions which under the Constitution, are to be decided by the people in their
sovereign capacity, or in regard to which full discretionary authority has been delegated
to the legislative or executive branch of government.
2
They have two aspects: (1) those
matters that are to be exercised by the people in their primary political capacity and (2)
matters which have been specifically delegated to some other department or particular
office of the government, with discretionary power to act.
3
The exercise of the
discretionary power of the legislative or executive branch of government was often the
area where the Court had to wrestle with the political question doctrine.
4

A brief review of some of our case law will thus give us a sharper perspective of the
political question doctrine. This question confronted the Court as early as 1905 in the
case ofBarcelon v. Baker.
5
The Governor-General of the Philippine Islands, pursuant to
a resolution of the Philippine Commission, suspended the privilege of the writ of habeas
corpus in Cavite and Batangas based on a finding of open insurrection in said
provinces. Felix Barcelon, who was detained by constabulary officers in Batangas, filed
a petition for the issuance of a writ of habeas corpus alleging that there was no open
insurrection in Batangas. The issue to resolve was whether or not the judicial
department may investigate the facts upon which the legislative (the Philippine
Commission) and executive (the Governor-General) branches of government acted in
suspending the privilege of the writ.
The Court ruled that under our form of government, one department has no
authority to inquire into the acts of another, which acts are performed within the
discretion of the other department.
6
Surveying American law and jurisprudence, it held
that whenever a statute gives discretionary power to any person, to be exercised by him
upon his own opinion of certain facts, the statute constitutes him the sole judge of the
existence of those facts.
7
Since the Philippine Bill of 1902 empowered the Philippine
Commission and the Governor-General to suspend the privilege of the writ of habeas
corpus, this power is exclusively within the discretion of the legislative and executive
branches of government. The exercise of this discretion is conclusive upon the
courts.
8

The Court further held that once a determination is made by the executive and
legislative departments that the conditions justifying the assailed acts exists, it will
presume that the conditions continue until the same authority decide that they no longer
exist.
9
It adopted the rationale that the executive branch, thru its civil and military
branches, are better situated to obtain information about peace and order from every
corner of the nation, in contrast with the judicial department, with its very limited
machinery.
10
The seed of the political question doctrine was thus planted in
Philippine soil.
The doctrine barring judicial review because of the political question doctrine
was next applied to the internal affairs of the legislature. The Court refused to
interfere in the legislative exercise of disciplinary power over its own members. In the
1924 case of Alejandrino v. Quezon,
11
Alejandrino, who was appointed Senator by the
Governor-General, was declared by Senate Resolution as guilty of disorderly conduct
for assaulting another Senator in the course of a debate, and was suspended from
office for one year. Senator Alejandrino filed a petition for mandamus and injunction to
compel the Senate to reinstate him. The Court held that under the Jones Law, the
power of the Senate to punish its members for disorderly behavior does not authorize it
to suspend an appointive member from the exercise of his office. While the Court found
that the suspension was illegal, it refused to issue the writ of mandamus on the ground
that "the Supreme Court does not possess the power of coercion to make the Philippine
Senate take any particular action. [T]he Philippine Legislature or any branch thereof
cannot be directly controlled in the exercise of their legislative powers by any judicial
process."
12

The issue revisited the Court twenty-two (22) years later. In 1946, in Vera v.
Avelino,
13

three senators-elect who had been prevented from taking their oaths of office
by a Senate resolution repaired to this Court to compel their colleagues to allow them to
occupy their seats contending that only the Electoral Tribunal had jurisdiction over
contests relating to their election, returns and qualifications. Again, the Court refused to
intervene citing Alejandrino and affirmed the inherent right of the legislature to
determine who shall be admitted to its membership.
In the 1947 case of Mabanag v. Lopez-Vito,
14
three Senators and eight
representatives who were proclaimed elected by Comelec were not allowed by
Congress to take part in the voting for the passage of the Parity amendment to the
Constitution. If their votes had been counted, the affirmative votes in favor of the
proposed amendment would have been short of the necessary three-fourths vote in
either House of Congress to pass the amendment. The amendment was eventually
submitted to the people for ratification. The Court declined to intervene and held that a
proposal to amend the Constitution is a highly political function performed by Congress
in its sovereign legislative capacity.
15

In the 1955 case of Arnault v. Balagtas,
16
petitioner, a private citizen, assailed the
legality of his detention ordered by the Senate for his refusal to answer questions put to
him by members of one of its investigating committees. This Court refused to order his
release holding that the process by which a contumacious witness is dealt with by the
legislature is a necessary concomitant of the legislative process and the legislature's
exercise of its discretionary authority is not subject to judicial interference.
In the 1960 case of Osmena v. Pendatun,
17
the Court followed the traditional line.
Congressman Sergio Osmena, Jr. was suspended by the House of Representatives for
serious disorderly behavior for making a privilege speech imputing "malicious charges"
against the President of the Philippines. Osmena, Jr. invoked the power of review of
this Court but the Court once more did not interfere with Congress' power to discipline
its members.
The contours of the political question doctrine have always been tricky. To be sure,
the Court did not always stay its hand whenever the doctrine is invoked. In the 1949
case ofAvelino v. Cuenco,
18
Senate President Jose Avelino, who was deposed and
replaced, questioned his successor's title claiming that the latter had been elected
without a quorum. The petition was initially dismissed on the ground that the selection of
Senate President was an internal matter and not subject to judicial review.
19
On
reconsideration, however, the Court ruled that it could assume jurisdiction over the
controversy in light of subsequent events justifying intervention among which was the
existence of a quorum.
20
Though the petition was ultimately dismissed, the Court
declared respondent Cuenco as the legally elected Senate President.
In the 1957 case of Tanada v. Cuenco,
21
the Court assumed jurisdiction over a
dispute involving the formation and composition of the Senate Electoral Tribunal. It
rejected the Solicitor General's claim that the dispute involved a political question.
Instead, it declared that the Senate is not clothed with "full discretionary authority" in the
choice of members of the Senate Electoral Tribunal and the exercise of its power
thereon is subject to constitutional limitations which are mandatory in nature.
22
It held
that under the Constitution, the membership of the Senate Electoral Tribunal was
designed to insure the exercise of judicial impartiality in the disposition of election
contests affecting members of the lawmaking body.
23
The Court then nullified the
election to the Senate Electoral Tribunal made by Senators belonging to the party
having the largest number of votes of two of their party members but purporting to act
on behalf of the party having the second highest number of votes.
In the 1962 case of Cunanan v. Tan, Jr.,
24
the Court passed judgment on whether
Congress had formed the Commission on Appointments in accordance with the
Constitution and found that it did not. It declared that the Commission on Appointments
is a creature of the Constitution and its power does not come from Congress but from
the Constitution.
The 1967 case of Gonzales v. Comelec
25
and the 1971 case of Tolentino v.
Comelec
26
abandoned Mabanag v. Lopez-Vito. The question of whether or not
Congress, acting as a constituent assembly in proposing amendments to the
Constitution violates the Constitution was held to be a justiciable and not a political
issue. In Gonzales, the Court ruled:
"It is true that in Mabanag v. Lopez-Vito, this Court characterizing the issue
submitted thereto as a political one, declined to pass upon the question
whether or not a given number of votes cast in Congress in favor of a
proposed amendment to the Constitution-which was being submitted to the
people for ratification-satisfied the three-fourths vote requirement of the
fundamental law. The force of this precedent has been weakened, however,
by Suanes v. Chief Accountant of the Senate, Avelino v. Cuenco, Tanada v.
Cuenco, and Macias v. Commission on Elections. In the first, we held that the
officers and employees of the Senate Electoral Tribunal are under its
supervision and control, not of that of the Senate President, as claimed by the
latter; in the second, this Court proceeded to determine the number of
Senators necessary for a quorum in the Senate; in the third, we nullified the
election, by Senators belonging to the party having the largest number of
votes in said chamber, purporting to act on behalf of the party having the
second largest number of votes therein, of two (2) Senators belonging to the
first party, as members, for the second party, of the Senate Electoral Tribunal;
and in the fourth, we declared unconstitutional an act of Congress purporting
to apportion the representative districts for the House of Representatives upon
the ground that the apportionment had not been made as may be possible
according to the number of inhabitants of each province. Thus, we rejected
the theory, advanced in these four cases, that the issues therein raised were
political questions the determination of which is beyond judicial review.
27

The Court explained that the power to amend the Constitution or to propose
amendments thereto is not included in the general grant of legislative powers to
Congress. As a constituent assembly, the members of Congress derive their authority
from the fundamental law and they do not have the final say on whether their acts are
within or beyond constitutional limits.
28
This ruling was reiterated in Tolentino which
held that acts of a constitutional convention called for the purpose of proposing
amendments to the Constitution are at par with acts of Congress acting as a constituent
assembly.
29

In sum, this Court brushed aside the political question doctrine and assumed
jurisdiction whenever it found constitutionally-imposed limits on the exercise of
powers conferred upon the Legislature.
30

The Court hewed to the same line as regards the exercise of Executive
power. Thus, the respect accorded executive discretion was observed in Severino v.
Governor-General,
31
where it was held that the Governor-General, as head of the
executive department, could not be compelled by mandamus to call a special election in
the town of Silay for the purpose of electing a municipal president. Mandamus and
injunction could not lie to enforce or restrain a duty which is discretionary. It was held
that when the Legislature conferred upon the Governor-General powers and duties, it
did so for the reason that he was in a better position to know the needs of the country
than any other member of the executive department, and with full confidence that he will
perform such duties as his best judgment dictates.
32

Similarly, in Abueva v. Wood,
33
the Court held that the Governor-General could not
be compelled by mandamus to produce certain vouchers showing the various
expenditures of the Independence Commission. Under the principle of separation of
powers, it ruled that it was not intended by the Constitution that one branch of
government could encroach upon the field of duty of the other. Each department has an
exclusive field within which it can perform its part within certain discretionary limits.
34
It
observed that "the executive and legislative departments of government are frequently
called upon to deal with what are known as political questions, with which the judicial
department of government has no intervention. In all such questions, the courts
uniformly refused to intervene for the purpose of directing or controlling the actions of
the other department; such questions being many times reserved to those departments
in the organic law of the state."
35

In Forties v. Tiaco,
36
the Court also refused to take cognizance of a case enjoining
the Chief Executive from deporting an obnoxious alien whose continued presence in the
Philippines was found by him to be injurious to the public interest. It noted that sudden
and unexpected conditions may arise, growing out of the presence of untrustworthy
aliens, which demand immediate action. The President's inherent power to deport
undesirable aliens is universally denominated as political, and this power continues to
exist for the preservation of the peace and domestic tranquility of the nation.
37

In Manalang v. Quitoriano,
38
the Court also declined to interfere in the exercise of
the President's appointing power. It held that the appointing power is the exclusive
prerogative of the President, upon which no limitations may be imposed by Congress,
except those resulting from the need of securing concurrence of the Commission on
Appointments and from the exercise of the limited legislative power to prescribe
qualifications to a given appointive office.
We now come to the exercise by the President of his powers as Commander-
in-Chief vis-a-vis the political question doctrine. In the 1940's, this Court has held that
as Commander-in-Chief of the Armed Forces, the President has the power to determine
whether war, in the legal sense, still continues or has terminated. It ruled that it is within
the province of the political department and not of the judicial department of government
to determine when war is at end.
39

In 1952, the Court decided the landmark case of Montenegro v.
Castaneda.
40
President Quirino suspended the privilege of the writ of habeas corpus for
persons detained or to be detained for crimes of sedition, insurrection or rebellion. The
Court, citing Barcelon, declared that the authority to decide whether the exigency has
arisen requiring the suspension of the privilege belongs to the President and his
decision is final and conclusive on the courts.
41

Barcelon was the ruling case law until the 1971 case of Lansang v.
Garcia came.
42
Lansang reversed the previous cases and held that the suspension of the
privilege of the writ of habeas corpus was not a political question. According to the
Court, the weight of Barcelon was diluted by two factors: (1) it relied heavily on Martin
v. Mott, which involved the U.S. President's power to call out the militia which is a much
broader power than suspension of the privilege of the writ; and (2) the privilege was
suspended by the American Governor-General whose act, as representative of the
sovereign affecting the freedom of its subjects, could not be equated with that of the
President of the Philippines dealing with the freedom of the sovereign Filipino people.
The Court declared that the power to suspend the privilege of the writ of
habeas corpus is neither absolute nor unqualified because the Constitution sets
limits on the exercise of executive discretion on the matter. These limits are: (1)
that the privilege must not be suspended except only in cases of invasion, insurrection
or rebellion or imminent danger thereof; and (2) when the public safety requires it, in
any of which events the same may be suspended wherever during such period the
necessity for the suspension shall exist. The extent of the power which may be inquired
into by courts is defined by these limitations.
43

On the vital issue of how the Court may inquire into the President's exercise of
power, it ruled that the function of the Court is not to supplant but merely to check the
Executive; to ascertain whether the President has gone beyond the constitutional limits
of his jurisdiction, not to exercise the power vested in him or to determine the wisdom of
his act. Judicial inquiry is confined to the question of whether the President did not act
arbitrarily.
44
Using this yardstick, the Court found that the President did not.
The emergency period of the 1970's flooded the Court with cases which raised the
political question defense. The issue divided the Court down the middle. Javellana v.
Executive Secretary
45
showed that while a majority of the Court held that the issue of
whether or not the 1973 Constitution had been ratified in accordance with the 1935
Constitution was justiciable, a majority also ruled that the decisive issue of whether the
1973 Constitution had come into force and effect, with or without constitutional
ratification, was a political question.
46

The validity of the declaration of martial law by then President Marcos was next
litigated before the Court. In Aquino, Jr. v. Enrile,
47
it upheld the President's
declaration of martial law. On whether the validity of the imposition of martial law was a
political or justiciable question, the Court was almost evenly divided. One-half
embraced the political question position and the other half subscribed to the justiciable
position in Lansang. Those adhering to the political question doctrine used different
methods of approach to it.
48

In 1983, the Lansang ruling was weakened by the Court in Garcia-Padilla v.
Enrile.
49
The petitioners therein were arrested and detained by the Philippine
Constabulary by virtue of a Presidential Commitment Order (PCO). Petitioners sought
the issuance of a writ of habeas corpus. The Court found that the PCO had the function
of validating a person's detention for any of the offenses covered in Proclamation No.
2045 which continued in force the suspension of the privilege of the writ of habeas
corpus. It held that the issuance of the PCO by the President was not subject to judicial
inquiry.
50
It went further by declaring that there was a need to re-examine Lansang with
a view to reverting to Barcelon and Montenegro. It observed that in times of war or
national emergency, the President must be given absolute control for the very life of the
nation and government is in great peril. The President, it intoned, is answerable only to
his conscience, the people, and God.
51

But barely six (6) days after Garcia-Padilla, the Court promulgated Morales, Jr. v.
Enrile
52
reiterating Lansang. It held that by the power of judicial review, the Court must
inquire into every phase and aspect of a person's detention from the moment he was
taken into custody up to the moment the court passes upon the merits of the
petition. Only after such a scrutiny can the court satisfy itself that the due process
clause of the Constitution has been met.
53

It is now history that the improper reliance by the Court on the political
question doctrine eroded the people's faith in its capacity to check abuses
committed by the then Executive in the exercise of his commander-in-chief
powers, particularly violations against human rights. The refusal of courts to be
pro-active in the exercise of its checking power drove the people to the streets to
resort to extralegal remedies. They gave birth to EDSA.
Two lessons were not lost to the members of the Constitutional Commission that
drafted the 1987 Constitution. The first was the need to grant this Court the express
power to review the exercise of the powers as commander-in-chief by the President
and deny it of any discretion to decline its exercise. The second was the need to
compel the Court to be pro-active by expanding its jurisdiction and, thus, reject its laid
back stance against acts constituting grave abuse of discretion on the part of any
branch or instrumentality of government. Then Chief Justice Roberto Concepcion, a
member of the Constitutional Commission, worked for the insertion of the second
paragraph of Section 1, Article VIII in the draft Constitution,
54
which reads:
"Sec. 1. x x x.
Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and
enforceable, and to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the
part of any branch or instrumentality of the Government."
The language of the provision clearly gives the Court the power to strike down acts
amounting to grave abuse of discretion of both the legislative and executive branches
of government.
We should interpret Section 18, Article VII of the 1987 Constitution in light of our
constitutional history. The provision states:
"Sec. 18. The President shall be the Commander-in-Chief of all armed
forces of the Philippines and whenever it becomes necessary, he may
call out such armed forces to prevent or suppress lawless violence,
invasion or rebellion. In case of invasion or rebellion, when the public
safety requires it, he may, for a period not exceeding sixty days,
suspend the privilege of the writ of habeas corpus or place the
Philippines or any part thereof under martial law. Within forty-eight hours
from the proclamation of martial law or the suspension of the privilege of the
writ of habeas corpus, the President shall submit a report in person or in
writing to Congress. The Congress, voting jointly, by a vote of at least a
majority of all its Members in regular or special session, may revoke such
proclamation or suspension, which revocation shall not be set aside by the
President. Upon the initiative of the President, the Congress may, in the
same manner, extend such proclamation or suspension for a period to be
determined by Congress, if the invasion or rebellion shall persist and public
safety requires it.
The Congress, if not in session, shall, within twenty-four hours following such
proclamation or suspension, convene in accordance with its rules without
need of a call.
The Supreme Court may review, in an appropriate proceeding filed by
any citizen, the sufficiency of the factual basis of the proclamation of
martial law or the suspension of the privilege of the writ or the extension
thereof, and must promulgate its decision thereon within thirty days
from its filing.
x x x."
It is clear from the foregoing that the President, as Commander-in-Chief of the
armed forces of the Philippines, may call out the armed forces subject to two
conditions: (1) whenever it becomes necessary; and (2) to prevent or suppress
lawless violence, invasion or rebellion. Undeniably, these conditions lay down
the sine qua requirement for the exercise of the power and the objective sought to
be attained by the exercise of the power. They define the constitutional
parameters of the calling out power. Whether or not there is compliance with
these parameters is a justiciable issue and is not a political question.
I am not unaware that in the deliberations of the Constitutional Commission,
Commissioner Bernas opined that the President's exercise of the "calling out power,"
unlike the suspension of the privilege of the writ of habeas corpus and the declaration of
martial law, is not a justiciable issue but a political question and therefore not subject to
judicial review.
It must be borne in mind, however, that while a member's opinion expressed on the
floor of the Constitutional Convention is valuable, it is not necessarily expressive of the
people's intent.
55
The proceedings of the Convention are less conclusive on the proper
construction of the fundamental law than are legislative proceedings of the proper
construction of a statute, for in the latter case it is the intent of the legislature the courts
seek, while in the former, courts seek to arrive at the intent of the people through the
discussions and deliberations of their representatives.
56
The conventional wisdom is that
the Constitution does not derive its force from the convention which framed it, but from
the people who ratified it, the intent to be arrived at is that of the people.
57

It is true that the third paragraph of Section 18, Article VII of the 1987
Constitution expressly gives the Court the power to review the sufficiency of the
factual bases used by the President in the suspension of the privilege of the writ
of habeas corpus and the declaration of martial law. It does not follow, however,
that just because the same provision did not grant to this Court the power to
review the exercise of the calling out power by the President, ergo, this Court
cannot pass upon the validity of its exercise.
Given the light of our constitutional history, this express grant of power
merely means that the Court cannot decline the exercise of its power because of
the political question doctrine as it did in the past. In fine, the express grant
simply stresses the mandatory duty of this Court to check the exercise of the
commander-in-chief powers of the President. It eliminated the discretion of the
Court not to wield its power of review thru the use of the political question
doctrine.
It may be conceded that the calling out power may be a "lesser power" compared to
the power to suspend the privilege of the writ of habeas corpus and the power to
declare martial law. Even then, its exercise cannot be left to the absolute discretion of
the Chief Executive as Commander-in-Chief of the armed forces, as its impact on the
rights of our people protected by the Constitution cannot be downgraded. We cannot
hold that acts of the commander-in-chief cannot be reviewed on the ground that they
have lesser impact on the civil and political rights of our people. The exercise of the
calling out power may be "benign" in the case at bar but may not be so in future cases.
The counsel of Mr. Chief Justice Enrique M. Fernando, in his Dissenting and
Concurring Opinion in Lansang that it would be dangerous and misleading to push the
political question doctrine too far, is apropos. It will not be complementary to the Court
if it handcuffs itself to helplessness when a grievously injured citizen seeks relief from a
palpably unwarranted use of presidential or military power, especially when the question
at issue falls in the penumbra between the "political" and the "justiciable. "
58

We should not water down the ruling that deciding whether a matter has been
committed by the Constitution to another branch of government, or whether the action of
that branch exceeds whatever authority has been committed, is a delicate exercise in
constitutional interpretation, and is a responsibility of the Court as ultimate
interpreter of the fundamental law.
59
When private justiciable rights are involved in a
suit, the Court must not refuse to assume jurisdiction even though questions of extreme
political importance are necessarily involved.
60
Every officer under a constitutional
government must act according to law and subject to the controlling power of the
people, acting through the courts, as well as through the executive and legislative. One
department is just as representative of the other, and the judiciary is the department
which is charged with the special duty of determining the limitations which the law
places upon all official action.
61
This historic role of the Court is the foundation stone
of a government of laws and not of men.
62

I join the Decision in its result.
SEPARATE OPINION
VITUG, J .:
In the equation of judicial power, neither of two extremes - one totalistic and the
other bounded - is acceptable nor ideal. The 1987 Constitution has introduced its
definition of the term "judicial power" to be that which -
x x x includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to
determine whether or not there has been grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government.
1

It is not meant that the Supreme Court must be deemed vested with the awesome
power of overseeing the entire bureaucracy, let alone of institutionalizing judicial
absolutism, under its mandate. But while this Court does not wield unlimited authority to
strike down an act of its two co-equal branches of government, it must not wither under
technical guise on its constitutionally ordained task to intervene, and to nullify if need
be, any such act as and when it is attended by grave abuse of discretion amounting to
lack or excess of jurisdiction. The proscription then against an interposition by the Court
into purely political questions, heretofore known, no longer holds within that context.
Justice Feria, in the case of Avelino vs. Cuenco,
2
has aptly elucidated in his
concurring opinion:
"x x x [I] concur with the majority that this Court has jurisdiction over cases like
the present x x x so as to establish in this country the judicial supremacy, with
the Supreme Court as the final arbiter, to see that no one branch or agency of
the government transcends the Constitution, not only in justiceable but
political questions as well."
3

It is here when the Court must have to depart from the broad principle of separation of
powers that disallows an intrusion by it in respect to the purely political decisions of its
independent and coordinate agencies of government.
The term grave abuse of discretion is long understood in our jurisprudence as
being, and confined to, a capricious and whimsical or despotic exercise of judgment
amounting to lack or excess of jurisdiction. Minus the not-so-unusual exaggerations
often invoked by litigants in the duel of views, the act of the President in simply calling
on the Armed Forces of the Philippines, an executive prerogative, to assist the
Philippine National Police in "joint visibility patrols" in the metropolis does not, I
believe, constitute grave abuse of discretion that would now warrant an exercise by the
Supreme Court of its extraordinary power as so envisioned by the fundamental law.
Accordingly, I vote for the dismissal of the petition.
MENDOZA, J ., concurring and dissenting:
I concur in the opinion of the Court insofar as it holds petitioner to be without
standing to question the validity of LOI 02/2000 which mandates the Philippine Marines
to conduct "joint visibility" patrols with the police in Metro Manila. But I dissent insofar
as the opinion dismisses the petition in this case on other grounds. I submit that
judgment on the substantive constitutional issues raised by petitioner must await an
actual case involving real parties with "injuries" to show as a result of the operation of
the challenged executive action. While as an organization for the advancement of the
rule of law petitioner has an interest in upholding the Constitution, its interest is
indistinguishable from the interest of the rest of the citizenry and falls short of that which
is necessary to give petitioner standing.
As I have indicated elsewhere, a citizens' suit challenging the constitutionality of
governmental action requires that (1) the petitioner must have suffered an "injury in fact"
of an actual or imminent nature; (2) there must be a causal connection between the
injury and the conduct complained of; and (3) the injury is likely to be redressed by a
favorable action by this Court.
1
The "injury in fact" test requires more than injury to a
cognizable interest. It requires that the party seeking review be himself among those
injured.
2

My insistence on compliance with the standing requirement is grounded in the
conviction that only a party injured by the operation of the governmental action
challenged is in the best position to aid the Court in determining the precise nature of
the problem presented. Many a time we have adverted to the power of judicial review
as an awesome power not to be exercised save in the most exigent situation. For,
indeed, sound judgment on momentous constitutional questions is not likely to be
reached unless it is the result of a clash of adversary arguments which only parties with
direct and specific interest in the outcome of the controversy can make. This is true not
only when we strike down a law or official action but also when we uphold it.
In this case, because of the absence of parties with real and substantial interest to
protect, we do not have evidence on the effect of military presence in malls and
commercial centers,i.e., whether such presence is coercive or benign. We do not know
whether the presence of so many marines and policemen scares shoppers, tourists,
and peaceful civilians, or whether it is reassuring to them. To be sure, the deployment
of troops to such places is not like parading them at the Luneta on Independence
Day. Neither is it, however, like calling them out because of actual fighting or the
outbreak of violence.
We need to have evidence on these questions because, under the Constitution, the
President's power to call out the armed forces in order to suppress lawless violence,
invasion or rebellion is subject to the limitation that the exercise of this power is required
in the interest of public safety.
3

Indeed, whether it is the calling out of the armed forces alone in order to suppress
lawless violence, invasion or rebellion or also the suspension of the privilege of the writ
of habeas corpus or the proclamation of martial law (in case of invasion or rebellion),
the exercise of the President's powers as commander-in-chief, requires proof - not mere
assertion.
4
As has been pointed out, "Standing is not `an ingenious academic exercise
in the conceivable' . . . but requires . . . a factual showing of perceptible harm."
5

Because of the absence of such record evidence, we are left to guess or even
speculate on these questions. Thus, at one point, the majority opinion says that what is
involved here is not even the calling out of the armed forces but only the use of marines
for law enforcement. (p. 13) At another point, however, the majority opinion
somersaults and says that because of bombings perpetrated by lawless elements, the
deployment of troops in shopping centers and public utilities is justified. (p. 24)
We are likely to err in dismissing the suit brought in this case on the ground that the
calling out of the military does not violate the Constitution, just as we are likely to do so
if we grant the petition and invalidate the executive issuance in question. For indeed,
the lack of a real, earnest and vital controversy can only impoverish the judicial
process. That is why, as Justice Laurel emphasized in the Angara case, "this power of
judicial review is limited to actual cases and controversies to be exercised after full
opportunity of argument by the parties, and limited further to the constitutional question
raised or the very lis mota presented."
6

We are told, however, that the issues raised in this case are of "paramount interest"
to the nation. It is precisely because the issues raised are of paramount importance
that we should all the more forego ruling on the constitutional issues raised by petitioner
and limit the dismissal of this petition on the ground of lack of standing of petitioner. A
Fabian policy of leaving well enough alone is a counsel of prudence.
For these reasons and with due appreciation of the scholarly attention lavished by
the majority opinion on the constitutional questions raised, I am constrained to limit my
concurrence to the dismissal of this suit on the ground of lack of standing of petitioner
and the consequent lack of an actual case or controversy.

G.R. No. 131719 May 25, 2004
THE EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY OF LABOR
AND EMPLOYMENT, AND THE SECRETARY OF FOREIGN AFFAIRS, OWWA PUNO,
ADMINISTRATOR, and POEA ADMINISTRATOR, petitioners,
vs.
THE HON. COURT OF APPEALS and ASIAN RECRUITMENT COUNCIL PHILIPPINE CHAPTER
(ARCO-PHIL.), INC., representing its members: Worldcare Services Internationale, Inc.,
Steadfast
International Recruitment Corporation, Dragon International Manpower Services Corporation,
Verdant Manpower Mobilization Corporation, Brent Overseas Personnel, Inc., ARL Manpower
Services, Inc., Dahlzhen International Services, Inc., Interworld Placement Center, Inc., Lakas
Tao Contract Services, Ltd. Co., and SSC Multiservices, respondents.
D E C I S I O N
CALLEJO, SR., J .:
In this petition for review on certiorari, the Executive Secretary of the President of the Philippines,
the Secretary of Justice, the Secretary of Foreign Affairs, the Secretary of Labor and Employment,
the POEA Administrator and the OWWA Administrator, through the Office of the Solicitor General,
assail the Decision
1
of the Court of Appeals in CA-G.R. SP No. 38815 affirming the Order
2
of the
Regional Trial Court of Quezon City dated August 21, 1995 in Civil Case No. Q-95-24401, granting
the plea of the petitioners therein for a writ of preliminary injunction and of the writ of preliminary
injunction issued by the trial court on August 24, 1995.
The Antecedents
Republic Act No. 8042, otherwise known as the Migrant Workers and Overseas Filipinos Act of
1995, took effect on July 15, 1995. The Omnibus Rules and Regulations Implementing the Migrant
Workers and Overseas Filipino Act of 1995 was, thereafter, published in the April 7, 1996 issue of
the Manila Bulletin. However, even before the law took effect, the Asian Recruitment Council
Philippine Chapter, Inc. (ARCO-Phil.) filed, on July 17, 1995, a petition for declaratory relief under
Rule 63 of the Rules of Court with the Regional Trial Court of Quezon City to declare as
unconstitutional Section 2, paragraph (g), Section 6, paragraphs (a) to (j), (l) and (m), Section 7,
paragraphs (a) and (b), and Sections 9 and 10 of the law, with a plea for the issuance of a temporary
restraining order and/or writ of preliminary injunction enjoining the respondents therein from
enforcing the assailed provisions of the law.
In a supplement to its petition, the ARCO-Phil. alleged that Rep. Act No. 8042 was self-executory
and that no implementing rules were needed. It prayed that the court issue a temporary restraining
order to enjoin the enforcement of Section 6, paragraphs (a) to (m) on illegal recruitment, Section 7
on penalties for illegal recruitment, and Section 9 on venue of criminal actions for illegal
recruitments, viz:
Viewed in the light of the foregoing discussions, there appears to be urgent an imperative
need for this Honorable Court to maintain the status quo by enjoining the implementation or
effectivity of the questioned provisions of RA 8042, by way of a restraining order otherwise,
the member recruitment agencies of the petitioner will suffer grave or irreparable damage or
injury. With the effectivity of RA 8042, a great majority of the duly licensed recruitment
agencies have stopped or suspended their operations for fear of being prosecuted under the
provisions of a law that are unjust and unconstitutional. This Honorable Court may take
judicial notice of the fact that processing of deployment papers of overseas workers for the
past weeks have come to a standstill at the POEA and this has affected thousands of
workers everyday just because of the enactment of RA 8042. Indeed, this has far reaching
effects not only to survival of the overseas manpower supply industry and the active
participating recruitment agencies, the countrys economy which has survived mainly due to
the dollar remittances of the overseas workers but more importantly, to the poor and the
needy who are in dire need of income-generating jobs which can only be obtained from
abroad. The loss or injury that the recruitment agencies will suffer will then be immeasurable
and irreparable. As of now, even foreign employers have already reduced their manpower
requirements from the Philippines due to their knowledge that RA 8042 prejudiced and
adversely affected the local recruitment agencies.
3

On August 1, 1995, the trial court issued a temporary restraining order effective for a period of only
twenty (20) days therefrom.
After the petitioners filed their comment on the petition, the ARCO-Phil. filed an amended petition,
the amendments consisting in the inclusion in the caption thereof eleven (11) other corporations
which it alleged were its members and which it represented in the suit, and a plea for a temporary
restraining order enjoining the respondents from enforcing Section 6 subsection (i), Section 6
subsection (k) and paragraphs 15 and 16 thereof, Section 8, Section 10, paragraphs 1 and 2, and
Sections 11 and 40 of Rep. Act No. 8042.
The respondent ARCO-Phil. assailed Section 2(g) and (i), Section 6 subsection (a) to (m), Section
7(a) to (b), and Section 10 paragraphs (1) and (2), quoted as follows:
(g) THE STATE RECOGNIZES THAT THE ULTIMATE PROTECTION TO ALL MIGRANT
WORKERS IS THE POSSESSION OF SKILLS. PURSUANT TO THIS AND AS SOON AS
PRACTICABLE, THE GOVERNMENT SHALL DEPLOY AND/OR ALLOW THE
DEPLOYMENT ONLY OF SKILLED FILIPINO WORKERS.
4

Sec. 2 subsection (i, 2nd par.)
Nonetheless, the deployment of Filipino overseas workers, whether land-based or sea-
based, by local service contractors and manning agents employing them shall be
encourages (sic). Appropriate incentives may be extended to them.

II. ILLEGAL RECRUITMENT
SEC. 6. Definition. For purposes of this Act, illegal recruitment shall mean any act of
canvassing, enlisting, contracting, transporting, utilizing, hiring, or procuring workers and
includes referring, contract services, promising or advertising for employment abroad,
whether for profit or not, when undertaken by a non-licensee or non-holder of authority
contemplated under Article 13(f) of Presidential Decree No. 442, as amended, otherwise
known as the Labor Code of the Philippines: Provided, That any such non-licensee or non-
holder who, in any manner, offers or promises for a fee employment abroad to two or more
persons shall be deemed so engaged. It shall, likewise, include the following acts, whether
committed by any person, whether a non-licensee, non-holder, licensee or holder of
authority:
(a) To charge or accept directly or indirectly any amount greater than that specified in
the schedule of allowable fees prescribed by the Secretary of Labor and
Employment, or to make a worker pay any amount greater than that actually received
by him as a loan or advance;
(b) To furnish or publish any false notice or information or document in relation to
recruitment or employment;
(c) To give any false notice, testimony, information or document or commit any act of
misrepresentation for the purpose of securing a license or authority under the Labor
Code;
(d) To induce or attempt to induce a worker already employed to quit his employment
in order to offer him another unless the transfer is designed to liberate a worker from
oppressive terms and conditions of employment;
(e) To influence or attempt to influence any person or entity not to employ any worker
who has not applied for employment through his agency;
(f) To engage in the recruitment or placement of workers in jobs harmful to public
health or morality or to the dignity of the Republic of the Philippines;
(g) To obstruct or attempt to obstruct inspection by the Secretary of Labor and
Employment or by his duly authorized representative;
(h) To fail to submit reports on the status of employment, placement vacancies,
remittance of foreign exchange earnings, separation from jobs, departures and such
other matters or information as may be required by the Secretary of Labor and
Employment;
(i) To substitute or alter to the prejudice of the worker, employment contracts
approved and verified by the Department of Labor and Employment from the time of
actual signing thereof by the parties up to and including the period of the expiration of
the same without the approval of the Department of Labor and Employment;
(j) For an officer or agent of a recruitment or placement agency to become an officer
or member of the Board of any corporation engaged in travel agency or to be
engaged directly or indirectly in the management of a travel agency;
(k) To withhold or deny travel documents from applicant workers before departure for
monetary or financial considerations other than those authorized under the Labor
Code and its implementing rules and regulations;
(l) Failure to actually deploy without valid reason as determined by the Department of
Labor and Employment; and
(m) Failure to reimburse expenses incurred by the worker in connection with his
documentation and processing for purposes of deployment, in cases where the
deployment does not actually take place without the workers fault. Illegal recruitment
when committed by a syndicate or in large scale shall be considered an offense
involving economic sabotage.
Illegal recruitment is deemed committed by a syndicate if carried out by a group of three (3)
or more persons conspiring or confederating with one another. It is deemed committed in
large scale if committed against three (3) or more persons individually or as a group.
The persons criminally liable for the above offenses are the principals, accomplices and
accessories. In case of juridical persons, the officers having control, management or
direction of their business shall be liable.

SEC. 7. Penalties.
(a) Any person found guilty of illegal recruitment shall suffer the penalty of imprisonment of
not less than six (6) years and one (1) day but not more than twelve (12) years and a fine of
not less than two hundred thousand pesos (P200,000.00) nor more than five hundred
thousand pesos (P500,000.00).
(b) The penalty of life imprisonment and a fine of not less than five hundred thousand pesos
(P500,000.00) nor more than one million pesos (P1,000,000.00) shall be imposed if illegal
recruitment constitutes economic sabotage as defined herein.
Provided, however, That the maximum penalty shall be imposed if the person illegally
recruited is less than eighteen (18) years of age or committed by a non-licensee or non-
holder of authority.
Sec. 8.
Prohibition on Officials and Employees. It shall be unlawful for any official or employee of
the Department of Labor and Employment, the Philippine Overseas Employment
Administration (POEA), or the Overseas Workers Welfare Administration (OWWA), or the
Department of Foreign Affairs, or other government agencies involved in the implementation
of this Act, or their relatives within the fourth civil degree of consanguinity or affinity, to
engage, directly or indirectly, in the business of recruiting migrant workers as defined in this
Act. The penalties provided in the immediate preceding paragraph shall be imposed upon
them. (underscoring supplied)

Sec. 10, pars. 1 & 2.
Money Claims. Notwithstanding any provision of law to the contrary, the Labor Arbiters of
the National Labor Relations Commission (NLRC) shall have the original and exclusive
jurisdiction to hear and decide,within ninety (90) calendar days after the filing of the
complaint, the claims arising out of an employer-employee relationship or by virtue of any
law or contract involving Filipino workers for overseas deployment including claims for actual,
moral, exemplary and other forms of damages.
The liability of the principal/employer and the recruitment/placement agency for any and all
claims under this section shall be joint and several. This provision shall be incorporated in
the contract for overseas employment and shall be a condition precedent for its approval.
The performance bond to be filed by the recruitment/placement agency, as provided by law,
shall be answerable for all money claims or damages that may be awarded to the workers. If
the recruitment/placement agency is a juridical being, the corporate officers and directors
and partners as the case may be, shall themselves be jointly and solidarily liable with the
corporation or partnership for the aforesaid claims and damages.

SEC. 11. Mandatory Periods for Resolution of Illegal Recruitment Cases. The preliminary
investigations of cases under this Act shall be terminated within a period of thirty (30)
calendar days from the date of their filing. Where the preliminary investigation is conducted
by a prosecution officer and a prima facie case is established, the corresponding information
shall be filed in court within twenty-four (24) hours from the termination of the investigation. If
the preliminary investigation is conducted by a judge and a prima facie case is found to exist,
the corresponding information shall be filed by the proper prosecution officer within forty-
eight (48) hours from the date of receipt of the records of the case.
The respondent averred that the aforequoted provisions of Rep. Act No. 8042 violate Section 1,
Article III of the Constitution.
5
According to the respondent, Section 6(g) and (i) discriminated against
unskilled workers and their families and, as such, violated the equal protection clause, as well as
Article II, Section 12
6
and Article XV, Sections 1
7
and 3(3) of the Constitution.
8
As the law
encouraged the deployment of skilled Filipino workers, only overseas skilled workers are granted
rights. The respondent stressed that unskilled workers also have the right to seek employment
abroad. According to the respondent, the right of unskilled workers to due process is violated
because they are prevented from finding employment and earning a living abroad. It cannot be
argued that skilled workers are immune from abuses by employers, while unskilled workers are
merely prone to such abuses. It was pointed out that both skilled and unskilled workers are
subjected to abuses by foreign employers. Furthermore, the prohibition of the deployment of
unskilled workers abroad would only encourage fly-by-night illegal recruiters.
According to the respondent, the grant of incentives to service contractors and manning agencies to
the exclusion of all other licensed and authorized recruiters is an invalid classification. Licensed and
authorized recruiters are thus deprived of their right to property and due process and to the "equality
of the person." It is understandable for the law to prohibit illegal recruiters, but to discriminate against
licensed and registered recruiters is unconstitutional.
The respondent, likewise, alleged that Section 6, subsections (a) to (m) is unconstitutional because
licensed and authorized recruitment agencies are placed on equal footing with illegal recruiters. It
contended that while the Labor Code distinguished between recruiters who are holders of licenses
and non-holders thereof in the imposition of penalties, Rep. Act No. 8042 does not make any
distinction. The penalties in Section 7(a) and (b) being based on an invalid classification are,
therefore, repugnant to the equal protection clause, besides being excessive; hence, such penalties
are violative of Section 19(1), Article III of the Constitution.
9
It was also pointed out that the penalty
for officers/officials/employees of recruitment agencies who are found guilty of economic sabotage or
large-scale illegal recruitment under Rep. Act No. 8042 is life imprisonment. Since recruitment
agencies usually operate with a manpower of more than three persons, such agencies are forced to
shut down, lest their officers and/or employees be charged with large scale illegal recruitment or
economic sabotage and sentenced to life imprisonment. Thus, the penalty imposed by law, being
disproportionate to the prohibited acts, discourages the business of licensed and registered
recruitment agencies.
The respondent also posited that Section 6(m) and paragraphs (15) and (16), Sections 8, 9 and 10,
paragraph 2 of the law violate Section 22, Article III of the Constitution
10
prohibiting ex-post facto
laws and bills of attainder. This is because the provisions presume that a licensed and registered
recruitment agency is guilty of illegal recruitment involving economic sabotage, upon a finding that it
committed any of the prohibited acts under the law. Furthermore, officials, employees and their
relatives are presumed guilty of illegal recruitment involving economic sabotage upon such finding
that they committed any of the said prohibited acts.
The respondent further argued that the 90-day period in Section 10, paragraph (1) within which a
labor arbiter should decide a money claim is relatively short, and could deprive licensed and
registered recruiters of their right to due process. The period within which the summons and the
complaint would be served on foreign employees and, thereafter, the filing of the answer to the
complaint would take more than 90 days. This would thereby shift on local licensed and authorized
recruiters the burden of proving the defense of foreign employers. Furthermore, the respondent
asserted, Section 10, paragraph 2 of the law, which provides for the joint and several liability of the
officers and employees, is a bill of attainder and a violation of the right of the said corporate officers
and employees to due process. Considering that such corporate officers and employees act with
prior approval of the board of directors of such corporation, they should not be liable, jointly and
severally, for such corporate acts.
The respondent asserted that the following provisions of the law are unconstitutional:
SEC. 9. Venue. A criminal action arising from illegal recruitment as defined herein shall be
filed with the Regional Trial Court of the province or city where the offense was committed or
where the offended party actually resides at the time of the commission of the offense:
Provided, That the court where the criminal action is first filed shall acquire jurisdiction to the
exclusion of other courts: Provided, however, That the aforestated provisions shall also apply
to those criminal actions that have already been filed in court at the time of the effectivity of
this Act.

SEC. 10. Money Claims. Notwithstanding any provision of law to the contrary, the Labor
Arbiters of the National Labor Relations Commission (NLRC) shall have the original and
exclusive jurisdiction to hear and decide, within ninety (90) calendar days after the filing of
the complaint, the claims arising out of an employer-employee relationship or by virtue of any
law or contract involving Filipino workers for overseas deployment including claims for actual,
moral, exemplary and other forms of damages.
Sec. 40.
The departments and agencies charged with carrying out the provisions of this Act shall,
within ninety (90) days after the effectiviy of this Act, formulate the necessary rules and
regulations for its effective implementation.
According to the respondent, the said provisions violate Section 5(5), Article VIII of the
Constitution
11
because they impair the power of the Supreme Court to promulgate rules of
procedure.
In their answer to the petition, the petitioners alleged, inter alia, that (a) the respondent has no cause
of action for a declaratory relief; (b) the petition was premature as the rules implementing Rep. Act
No. 8042 not having been released as yet; (c) the assailed provisions do not violate any provisions
of the Constitution; and, (d) the law was approved by Congress in the exercise of the police power of
the State. In opposition to the respondents plea for injunctive relief, the petitioners averred that:
As earlier shown, the amended petition for declaratory relief is devoid of merit for failure of petitioner
to demonstrate convincingly that the assailed law is unconstitutional, apart from the defect and
impropriety of the petition. One who attacks a statute, alleging unconstitutionality must prove its
invalidity beyond reasonable doubt (Caleon v. Agus Development Corporation, 207 SCRA 748). All
reasonable doubts should be resolved in favor of the constitutionality of a statute (People v. Vera, 65
Phil. 56). This presumption of constitutionality is based on the doctrine of separation of powers which
enjoin upon each department a becoming respect for the acts of the other departments (Garcia vs.
Executive Secretary, 204 SCRA 516 [1991]). Necessarily, the ancillary remedy of a temporary
restraining order and/or a writ of preliminary injunction prayed for must fall. Besides, an act of
legislature approved by the executive is presumed to be within constitutional bounds (National Press
Club v. Commission on Elections, 207 SCRA 1).
12

After the respective counsels of the parties were heard on oral arguments, the trial court issued on
August 21, 1995, an order granting the petitioners plea for a writ of preliminary injunction upon a
bond of P50,000. The petitioner posted the requisite bond and on August 24, 1995, the trial court
issued a writ of preliminary injunction enjoining the enforcement of the following provisions of Rep.
Act No. 8042 pending the termination of the proceedings:
Section 2, subsections (g) and (i, 2nd par.); Section 6, subsections (a) to (m), and pars.
15 & 16; Section 7, subsections (a) & (b); Section 8; Section 9; Section 10; pars. 1 & 2;
Section 11; and Section 40 of Republic Act No. 8042, otherwise known as the Migrant
Workers and Overseas Filipinos Act of 1995.
13

The petitioners filed a petition for certiorari with the Court of Appeals assailing the order and the writ
of preliminary injunction issued by the trial court on the following grounds:
1. Respondent ARCO-PHIL. had utterly failed to show its clear right/s or that of its member-
agencies to be protected by the injunctive relief and/or violation of said rights by the
enforcement of the assailed sections of R.A. 8042;
2. Respondent Judge fixed a P50,000 injunction bond which is grossly inadequate to answer
for the damage which petitioner-officials may sustain, should respondent ARCO-PHIL. be
finally adjudged as not being entitled thereto.
14

The petitioners asserted that the respondent is not the real party-in-interest as petitioner in the trial
court. It is inconceivable how the respondent, a non-stock and non-profit corporation, could sustain
direct injury as a result of the enforcement of the law. They argued that if, at all, any damage would
result in the implementation of the law, it is the licensed and registered recruitment agencies and/or
the unskilled Filipino migrant workers discriminated against who would sustain the said injury or
damage, not the respondent. The respondent, as petitioner in the trial court, was burdened to
adduce preponderant evidence of such irreparable injury, but failed to do so. The petitioners further
insisted that the petition a quo was premature since the rules and regulations implementing the law
had yet to be promulgated when such petition was filed. Finally, the petitioners averred that the
respondent failed to establish the requisites for the issuance of a writ of preliminary injunction
against the enforcement of the law and the rules and regulations issued implementing the same.
On December 5, 1997, the appellate court came out with a four-page decision dismissing the petition
and affirming the assailed order and writ of preliminary injunction issued by the trial court. The
appellate court, likewise, denied the petitioners motion for reconsideration of the said decision.
The petitioners now come to this Court in a petition for review on certiorari on the following grounds:
1. Private respondent ARCO-PHIL. had utterly failed to show its clear right/s or that of its
member-agencies to be protected by the injunctive relief and/or violation of said rights by the
enforcement of the assailed sections of R.A. 8042;
2. The P50,000 injunction bond fixed by the court a quo and sustained by the Court of
Appeals is grossly inadequate to answer for the damage which petitioners-officials may
sustain, should private respondent ARCO-PHIL. be finally adjudged as not being entitled
thereto.
15

On February 16, 1998, this Court issued a temporary restraining order enjoining the respondents
from enforcing the assailed order and writ of preliminary injunction.
The Issues
The core issue in this case is whether or not the trial court committed grave abuse of its discretion
amounting to excess or lack of jurisdiction in issuing the assailed order and the writ of preliminary
injunction on a bond of onlyP50,000 and whether or not the appellate court erred in affirming the trial
courts order and the writ of preliminary injunction issued by it.
The petitioners contend that the respondent has no locus standi. It is a non-stock, non-profit
organization; hence, not the real party-in-interest as petitioner in the action. Although the respondent
filed the petition in the Regional Trial Court in behalf of licensed and registered recruitment agencies,
it failed to adduce in evidence a certified copy of its Articles of Incorporation and the resolutions of
the said members authorizing it to represent the said agencies in the proceedings. Neither is the suit
of the respondent a class suit so as to vest in it a personality to assail Rep. Act No. 8042; the
respondent is service-oriented while the recruitment agencies it purports to represent are profit-
oriented. The petitioners assert that the law is presumed constitutional and, as such, the respondent
was burdened to make a case strong enough to overcome such presumption and establish a clear
right to injunctive relief.
The petitioners bewail the P50,000 bond fixed by the trial court for the issuance of a writ of
preliminary injunction and affirmed by the appellate court. They assert that the amount is grossly
inadequate to answer for any damages that the general public may suffer by reason of the non-
enforcement of the assailed provisions of the law. The trial court committed a grave abuse of its
discretion in granting the respondents plea for injunctive relief, and the appellate court erred in
affirming the order and the writ of preliminary injunction issued by the trial court.
The respondent, for its part, asserts that it has duly established its locus standi and its right to
injunctive relief as gleaned from its pleadings and the appendages thereto. Under Section 5, Rule 58
of the Rules of Court, it was incumbent on the petitioners, as respondents in the RTC, to show cause
why no injunction should issue. It avers that the injunction bond posted by the respondent was more
than adequate to answer for any injury or damage the petitioners may suffer, if any, by reason of the
writ of preliminary injunction issued by the RTC. In any event, the assailed provisions of Rep. Act
No. 8042 exposed its members to the immediate and irreparable damage of being deprived of their
right to a livelihood without due process, a property right protected under the Constitution.
The respondent contends that the commendable purpose of the law to eradicate illegal recruiters
should not be done at the expense and to the prejudice of licensed and authorized recruitment
agencies. The writ of preliminary injunction was necessitated by the great number of duly licensed
recruitment agencies that had stopped or suspended their business operations for fear that their
officers and employees would be indicted and prosecuted under the assailed oppressive penal
provisions of the law, and meted excessive penalties. The respondent, likewise, urges that the Court
should take judicial notice that the processing of deployment papers of overseas workers have come
to a virtual standstill at the POEA.
The Courts Ruling
The petition is meritorious.
The Respondent Has Locus Standi
To File the Petition in the RTC in Representation of the Eleven Licensed and Registered
Recruitment Agencies Impleaded in the Amended Petition
The modern view is that an association has standing to complain of injuries to its members. This
view fuses the legal identity of an association with that of its members.
16
An association has standing
to file suit for its workers despite its lack of direct interest if its members are affected by the action.
An organization has standing to assert the concerns of its constituents.
17

In Telecommunications and Broadcast Attorneys of the Philippines v. Commission on Elections,
18
we
held that standing jus tertii would be recognized only if it can be shown that the party suing has
some substantial relation to the third party, or that the right of the third party would be diluted unless
the party in court is allowed to espouse the third partys constitutional claims.
In this case, the respondent filed the petition for declaratory relief under Rule 64 of the Rules of
Court for and in behalf of its eleven (11) licensed and registered recruitment agencies which are its
members, and which approved separate resolutions expressly authorizing the respondent to file the
said suit for and in their behalf. We note that, under its Articles of Incorporation, the respondent was
organized for the purposes inter alia of promoting and supporting the growth and development of the
manpower recruitment industry, both in the local and international levels; providing, creating and
exploring employment opportunities for the exclusive benefit of its general membership; enhancing
and promoting the general welfare and protection of Filipino workers; and, to act as the
representative of any individual, company, entity or association on matters related to the manpower
recruitment industry, and to perform other acts and activities necessary to accomplish the purposes
embodied therein. The respondent is, thus, the appropriate party to assert the rights of its members,
because it and its members are in every practical sense identical. The respondent asserts that the
assailed provisions violate the constitutional rights of its members and the officers and employees
thereof. The respondent is but the medium through which its individual members seek to make more
effective the expression of their voices and the redress of their grievances.
19

However, the respondent has no locus standi to file the petition for and in behalf of unskilled
workers. We note that it even failed to implead any unskilled workers in its petition. Furthermore, in
failing to implead, as parties-petitioners, the eleven licensed and registered recruitment agencies it
claimed to represent, the respondent failed to comply with Section 2 of Rule 63
20
of the Rules of
Court. Nevertheless, since the eleven licensed and registered recruitment agencies for which the
respondent filed the suit are specifically named in the petition, the amended petition is deemed
amended to avoid multiplicity of suits.
21

The Assailed Order and Writ of
Preliminary Injunction Is Mooted
By Case Law
The respondent justified its plea for injunctive relief on the allegation in its amended petition that its
members are exposed to the immediate and irreparable danger of being deprived of their right to a
livelihood and other constitutional rights without due process, on its claim that a great number of duly
licensed recruitment agencies have stopped or suspended their operations for fear that (a) their
officers and employees would be prosecuted under the unjust and unconstitutional penal provisions
of Rep. Act No. 8042 and meted equally unjust and excessive penalties, including life imprisonment,
for illegal recruitment and large scale illegal recruitment without regard to whether the recruitment
agencies involved are licensed and/or authorized; and, (b) if the members of the respondent, which
are licensed and authorized, decide to continue with their businesses, they face the stigma and the
curse of being labeled "illegal recruiters." In granting the respondents plea for a writ of preliminary
injunction, the trial court held, without stating the factual and legal basis therefor, that the
enforcement of Rep. Act No. 8042, pendente lite, would cause grave and irreparable injury to the
respondent until the case is decided on its merits.
We note, however, that since Rep. Act No. 8042 took effect on July 15, 1995, the Court had, in a
catena of cases, applied the penal provisions in Section 6, including paragraph (m) thereof, and the
last two paragraphs therein defining large scale illegal recruitment committed by officers and/or
employees of recruitment agencies by themselves and in connivance with private individuals, and
imposed the penalties provided in Section 7 thereof, including the penalty of life imprisonment.
22
The
Informations therein were filed after preliminary investigations as provided for in Section 11 of Rep.
Act No. 8042 and in venues as provided for in Section 9 of the said act. In People v. Chowdury,
23
we
held that illegal recruitment is a crime of economic sabotage and must be enforced.
In People v. Diaz,
24
we held that Rep. Act No. 8042 is but an amendment of the Labor Code of the
Philippines and is not an ex-post facto law because it is not applied retroactively. In JMM Promotion
and Management, Inc. v. Court of Appeals,
25
the issue of the extent of the police power of the State
to regulate a business, profession or calling vis--vis the equal protection clause and the non-
impairment clause of the Constitution were raised and we held, thus:
A profession, trade or calling is a property right within the meaning of our constitutional
guarantees. One cannot be deprived of the right to work and the right to make a living
because these rights are property rights, the arbitrary and unwarranted deprivation of which
normally constitutes an actionable wrong.
Nevertheless, no right is absolute, and the proper regulation of a profession, calling,
business or trade has always been upheld as a legitimate subject of a valid exercise of the
police power by the state particularly when their conduct affects either the execution of
legitimate governmental functions, the preservation of the State, the public health and
welfare and public morals. According to the maxim, sic utere tuo ut alienum non laedas, it
must of course be within the legitimate range of legislative action to define the mode and
manner in which every one may so use his own property so as not to pose injury to himself
or others.
In any case, where the liberty curtailed affects at most the rights of property, the permissible
scope of regulatory measures is certainly much wider. To pretend that licensing or
accreditation requirements violates the due process clause is to ignore the settled practice,
under the mantle of the police power, of regulating entry to the practice of various trades or
professions. Professionals leaving for abroad are required to pass rigid written and practical
exams before they are deemed fit to practice their trade. Seamen are required to take tests
determining their seamanship. Locally, the Professional Regulation Commission has begun
to require previously licensed doctors and other professionals to furnish documentary proof
that they had either re-trained or had undertaken continuing education courses as a
requirement for renewal of their licenses. It is not claimed that these requirements pose an
unwarranted deprivation of a property right under the due process clause. So long as
professionals and other workers meet reasonable regulatory standards no such deprivation
exists.
Finally, it is a futile gesture on the part of petitioners to invoke the non-impairment clause of
the Constitution to support their argument that the government cannot enact the assailed
regulatory measures because they abridge the freedom to contract. In Philippine Association
of Service Exporters, Inc. vs. Drilon, we held that "[t]he non-impairment clause of the
Constitution must yield to the loftier purposes targeted by the government." Equally
important, into every contract is read provisions of existing law, and always, a reservation of
the police power for so long as the agreement deals with a subject impressed with the public
welfare.
A last point. Petitioners suggest that the singling out of entertainers and performing artists
under the assailed department orders constitutes class legislation which violates the equal
protection clause of the Constitution. We do not agree.
The equal protection clause is directed principally against undue favor and individual or class
privilege. It is not intended to prohibit legislation which is limited to the object to which it is
directed or by the territory in which it is to operate. It does not require absolute equality, but
merely that all persons be treated alike under like conditions both as to privileges conferred
and liabilities imposed. We have held, time and again, that the equal protection clause of the
Constitution does not forbid classification for so long as such classification is based on real
and substantial differences having a reasonable relation to the subject of the particular
legislation. If classification is germane to the purpose of the law, concerns all members of the
class, and applies equally to present and future conditions, the classification does not violate
the equal protection guarantee.
26

The validity of Section 6 of R.A. No. 8042 which provides that employees of recruitment agencies
may be criminally liable for illegal recruitment has been upheld in People v. Chowdury:
27

As stated in the first sentence of Section 6 of RA 8042, the persons who may be held liable
for illegal recruitment are the principals, accomplices and accessories. An employee of a
company or corporation engaged in illegal recruitment may be held liable as principal,
together with his employer, if it is shown that he actively and consciously participated in
illegal recruitment. It has been held that the existence of the corporate entity does not shield
from prosecution the corporate agent who knowingly and intentionally causes the corporation
to commit a crime. The corporation obviously acts, and can act, only by and through its
human agents, and it is their conduct which the law must deter. The employee or agent of a
corporation engaged in unlawful business naturally aids and abets in the carrying on of such
business and will be prosecuted as principal if, with knowledge of the business, its purpose
and effect, he consciously contributes his efforts to its conduct and promotion, however slight
his contribution may be.
28

By its rulings, the Court thereby affirmed the validity of the assailed penal and procedural provisions
of Rep. Act No. 8042, including the imposable penalties therefor. Until the Court, by final judgment,
declares that the said provisions are unconstitutional, the enforcement of the said provisions cannot
be enjoined.
The RTC Committed Grave Abuse of Its Discretion Amounting to Excess or Lack of Jurisdiction in
Issuing the Assailed Order and the Writ of Preliminary Injunction
The matter of whether to issue a writ of preliminary injunction or not is addressed to the sound
discretion of the trial court. However, if the court commits grave abuse of its discretion in issuing the
said writ amounting to excess or lack of jurisdiction, the same may be nullified via a writ of certiorari
and prohibition.
In Social Security Commission v. Judge Bayona,
29
we ruled that a law is presumed constitutional
until otherwise declared by judicial interpretation. The suspension of the operation of the law is a
matter of extreme delicacy because it is an interference with the official acts not only of the duly
elected representatives of the people but also of the highest magistrate of the land.
In Younger v. Harris, Jr.,
30
the Supreme Court of the United States emphasized, thus:
Federal injunctions against state criminal statutes, either in their entirety or with respect to
their separate and distinct prohibitions, are not to be granted as a matter of course, even if
such statutes are unconstitutional. No citizen or member of the community is immune from
prosecution, in good faith, for his alleged criminal acts. The imminence of such a prosecution
even though alleged to be unauthorized and, hence, unlawful is not alone ground for relief in
equity which exerts its extraordinary powers only to prevent irreparable injury to the plaintiff
who seeks its aid. 752 Beal v. Missouri Pacific Railroad Corp., 312 U.S. 45, 49, 61 S.Ct. 418,
420, 85 L.Ed. 577.
And similarly, in Douglas, supra, we made clear, after reaffirming this rule, that:
"It does not appear from the record that petitioners have been threatened with any injury
other than that incidental to every criminal proceeding brought lawfully and in good faith "
319 U.S., at 164, 63 S.Ct., at 881.
31

The possible unconstitutionality of a statute, on its face, does not of itself justify an injunction against
good faith attempts to enforce it, unless there is a showing of bad faith, harassment, or any other
unusual circumstance that would call for equitable relief.
32
The "on its face" invalidation of statutes
has been described as "manifestly strong medicine," to be employed "sparingly and only as a last
resort," and is generally disfavored.
33

To be entitled to a preliminary injunction to enjoin the enforcement of a law assailed to be
unconstitutional, the party must establish that it will suffer irreparable harm in the absence of
injunctive relief and must demonstrate that it is likely to succeed on the merits, or that there are
sufficiently serious questions going to the merits and the balance of hardships tips decidedly in its
favor.
34
The higher standard reflects judicial deference toward "legislation or regulations developed
through presumptively reasoned democratic processes." Moreover, an injunction will alter, rather
than maintain, the status quo, or will provide the movant with substantially all the relief sought and
that relief cannot be undone even if the defendant prevails at a trial on the merits.
35
Considering that
injunction is an exercise of equitable relief and authority, in assessing whether to issue a preliminary
injunction, the courts must sensitively assess all the equities of the situation, including the public
interest.
36
In litigations between governmental and private parties, courts go much further both to
give and withhold relief in furtherance of public interest than they are accustomed to go when only
private interests are involved.
37
Before the plaintiff may be entitled to injunction against future
enforcement, he is burdened to show some substantial hardship.
38

The fear or chilling-effect of the assailed penal provisions of the law on the members of the
respondent does not by itself justify prohibiting the State from enforcing them against those whom
the State believes in good faith to be punishable under the laws:
Just as the incidental "chilling effect" of such statutes does not automatically render them
unconstitutional, so the chilling effect that admittedly can result from the very existence of
certain laws on the statute books does not in itself justify prohibiting the State from carrying
out the important and necessary task of enforcing these laws against socially harmful
conduct that the State believes in good faith to be punishable under its laws and the
Constitution.
39

It must be borne in mind that subject to constitutional limitations, Congress is empowered to define
what acts or omissions shall constitute a crime and to prescribe punishments therefor.
40
The power
is inherent in Congress and is part of the sovereign power of the State to maintain peace and order.
Whatever views may be entertained regarding the severity of punishment, whether one believes in
its efficiency or its futility, these are peculiarly questions of legislative policy.
41
The comparative
gravity of crimes and whether their consequences are more or less injurious are matters for the
State and Congress itself to determine.
42
Specification of penalties involves questions of legislative
policy.
43

Due process prohibits criminal stability from shifting the burden of proof to the accused, punishing
wholly passive conduct, defining crimes in vague or overbroad language and failing to grant fair
warning of illegal conduct.
44
Class legislation is such legislation which denies rights to one which are
accorded to others, or inflicts upon one individual a more severe penalty than is imposed upon
another in like case offending.
45
Bills of attainder are legislative acts which inflict punishment on
individuals or members of a particular group without a judicial trial. Essential to a bill of attainder are
a specification of certain individuals or a group of individuals, the imposition of a punishment, penal
or otherwise, and the lack of judicial trial.
46

Penalizing unlicensed and licensed recruitment agencies and their officers and employees and their
relatives employed in government agencies charged with the enforcement of the law for illegal
recruitment and imposing life imprisonment for those who commit large scale illegal recruitment is
not offensive to the Constitution. The accused may be convicted of illegal recruitment and large
scale illegal recruitment only if, after trial, the prosecution is able to prove all the elements of the
crime charged.
47

The possibility that the officers and employees of the recruitment agencies, which are members of
the respondent, and their relatives who are employed in the government agencies charged in the
enforcement of the law, would be indicted for illegal recruitment and, if convicted sentenced to life
imprisonment for large scale illegal recruitment, absent proof of irreparable injury, is not sufficient on
which to base the issuance of a writ of preliminary injunction to suspend the enforcement of the
penal provisions of Rep. Act No. 8042 and avert any indictments under the law.
48
The normal course
of criminal prosecutions cannot be blocked on the basis of allegations which amount to speculations
about the future.
49

There is no allegation in the amended petition or evidence adduced by the respondent that the
officers and/or employees of its members had been threatened with any indictments for violations of
the penal provisions of Rep. Act No. 8042. Neither is there any allegation therein that any of its
members and/or their officers and employees committed any of the acts enumerated in Section 6(a)
to (m) of the law for which they could be indicted. Neither did the respondent adduce any evidence in
the RTC that any or all of its members or a great number of other duly licensed and registered
recruitment agencies had to stop their business operations because of fear of indictments under
Sections 6 and 7 of Rep. Act No. 8042. The respondent merely speculated and surmised that
licensed and registered recruitment agencies would close shop and stop business operations
because of the assailed penal provisions of the law. A writ of preliminary injunction to enjoin the
enforcement of penal laws cannot be based on such conjectures or speculations. The Court cannot
take judicial notice that the processing of deployment papers of overseas workers have come to a
virtual standstill at the POEA because of the assailed provisions of Rep. Act No. 8042. The
respondent must adduce evidence to prove its allegation, and the petitioners accorded a chance to
adduce controverting evidence.
The respondent even failed to adduce any evidence to prove irreparable injury because of the
enforcement of Section 10(1)(2) of Rep. Act No. 8042. Its fear or apprehension that, because of time
constraints, its members would have to defend foreign employees in cases before the Labor Arbiter
is based on speculations. Even if true, such inconvenience or difficulty is hardly irreparable injury.
The trial court even ignored the public interest involved in suspending the enforcement of Rep. Act
No. 8042 vis--vis the eleven licensed and registered recruitment agencies represented by the
respondent. In People v. Gamboa,
50
we emphasized the primary aim of Rep. Act No. 8042:
Preliminarily, the proliferation of illegal job recruiters and syndicates preying on innocent
people anxious to obtain employment abroad is one of the primary considerations that led to
the enactment of The Migrant Workers and Overseas Filipinos Act of 1995. Aimed at
affording greater protection to overseas Filipino workers, it is a significant improvement on
existing laws in the recruitment and placement of workers for overseas employment.
Otherwise known as the Magna Carta of OFWs, it broadened the concept of illegal
recruitment under the Labor Code and provided stiffer penalties thereto, especially those that
constitute economic sabotage, i.e., Illegal Recruitment in Large Scale and Illegal Recruitment
Committed by a Syndicate.
51

By issuing the writ of preliminary injunction against the petitioners sans any evidence, the trial court
frustrated, albeit temporarily, the prosecution of illegal recruiters and allowed them to continue
victimizing hapless and innocent people desiring to obtain employment abroad as overseas workers,
and blocked the attainment of the salutary policies
52
embedded in Rep. Act No. 8042. It bears
stressing that overseas workers, land-based and sea-based, had been remitting to the Philippines
billions of dollars which over the years had propped the economy.
In issuing the writ of preliminary injunction, the trial court considered paramount the interests of the
eleven licensed and registered recruitment agencies represented by the respondent, and
capriciously overturned the presumption of the constitutionality of the assailed provisions on the
barefaced claim of the respondent that the assailed provisions of Rep. Act No. 8042 are
unconstitutional. The trial court committed a grave abuse of its discretion amounting to excess or
lack of jurisdiction in issuing the assailed order and writ of preliminary injunction. It is for this reason
that the Court issued a temporary restraining order enjoining the enforcement of the writ of
preliminary injunction issued by the trial court.
IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The assailed decision of the
appellate court isREVERSED AND SET ASIDE. The Order of the Regional Trial Court dated August
21, 1995 in Civil Case No. Q-95-24401 and the Writ of Preliminary Injunction issued by it in the said
case on August 24, 1995 are NULLIFIED. No costs.
SO ORDERED.
EN BANC
[G.R. No. 159139. January 13, 2004]
INFORMATION TECHNOLOGY FOUNDATION OF THE PHILIPPINES, MA.
CORAZON M. AKOL, MIGUEL UY, EDUARDO H. LOPEZ, AUGUSTO
C. LAGMAN, REX C. DRILON, MIGUEL HILADO, LEY SALCEDO,
and MANUEL ALCUAZ JR., petitioners, vs. COMMISSION ON
ELECTIONS; COMELEC CHAIRMAN BENJAMIN ABALOS SR.;
COMELEC BIDDING and AWARD COMMITTEE CHAIRMAN
EDUARDO D. MEJOS and MEMBERS GIDEON DE GUZMAN, JOSE F.
BALBUENA, LAMBERTO P. LLAMAS, and BARTOLOME SINOCRUZ
JR.; MEGA PACIFIC eSOLUTIONS, INC.; and MEGA PACIFIC
CONSORTIUM, respondents.
D E C I S I O N
PANGANIBAN, J .:
There is grave abuse of discretion (1) when an act is done contrary to the
Constitution, the law or jurisprudence;
[1]
or (2) when it is executed whimsically,
capriciously or arbitrarily out of malice, ill will or personal bias.
[2]
In the present case,
the Commission on Elections approved the assailed Resolution and awarded the
subject Contract not only in clear violation of law and jurisprudence, but also in reckless
disregard of its own bidding rules and procedure. For the automation of the counting
and canvassing of the ballots in the 2004 elections, Comelec awarded the Contract to
Mega Pacific Consortium an entity that had not participated in the bidding. Despite
this grant, the poll body signed the actual automation Contract with Mega Pacific
eSolutions, Inc., a company that joined the bidding but had not met the eligibility
requirements.
Comelec awarded this billion-peso undertaking with inexplicable haste, without
adequately checking and observing mandatory financial, technical and legal
requirements. It also accepted the proferred computer hardware and software even if,
at the time of the award, they had undeniably failed to pass eight critical requirements
designed to safeguard the integrity of elections, especially the following three items:
They failed to achieve the accuracy rating criteria of 99.9995 percent set-up by
the Comelec itself
They were not able to detect previously downloaded results at various
canvassing or consolidation levels and to prevent these from being inputted
again
They were unable to print the statutorily required audit trails of the
count/canvass at different levels without any loss of data
Because of the foregoing violations of law and the glaring grave abuse of discretion
committed by Comelec, the Court has no choice but to exercise its solemn
constitutional duty
[3]
to void the assailed Resolution and the subject Contract. The
illegal, imprudent and hasty actions of the Commission have not only desecrated legal
and jurisprudential norms, but have also cast serious doubts upon the poll bodys ability
and capacity to conduct automated elections. Truly, the pith and soul of democracy --
credible, orderly, and peaceful elections -- has been put in jeopardy by the illegal and
gravely abusive acts of Comelec.
The Case
Before us is a Petition
[4]
under Rule 65 of the Rules of Court, seeking (1) to declare
null and void Resolution No. 6074 of the Commission on Elections (Comelec), which
awarded Phase II of the Modernization Project of the Commission to Mega Pacific
Consortium (MPC); (2) to enjoin the implementation of any further contract that may
have been entered into by Comelec either with Mega Pacific Consortium and/or Mega
Pacific eSolutions, Inc. (MPEI); and (3) to compel Comelec to conduct a re-bidding of
the project.
The Facts
The following facts are not disputed. They were culled from official documents, the
parties pleadings, as well as from admissions during the Oral Argument on October 7,
2003.
On June 7, 1995, Congress passed Republic Act 8046,
[5]
which authorized Comelec
to conduct a nationwide demonstration of a computerized election system and allowed
the poll body to pilot-test the system in the March 1996 elections in the Autonomous
Region in Muslim Mindanao (ARMM).
On December 22, 1997, Congress enacted Republic Act 8436
[6]
authorizing
Comelec to use an automated election system (AES) for the process of voting, counting
votes and canvassing/consolidating the results of the national and local elections. It
also mandated the poll body to acquire automated counting machines (ACMs),
computer equipment, devices and materials; and to adopt new electoral forms and
printing materials.
Initially intending to implement the automation during the May 11, 1998 presidential
elections, Comelec -- in its Resolution No. 2985 dated February 9, 1998
[7]
-- eventually
decided against full national implementation and limited the automation to the
Autonomous Region in Muslim Mindanao (ARMM). However, due to the failure of the
machines to read correctly some automated ballots in one town, the poll body later
ordered their manual count for the entire Province of Sulu.
[8]

In the May 2001 elections, the counting and canvassing of votes for both national
and local positions were also done manually, as no additional ACMs had been acquired
for that electoral exercise allegedly because of time constraints.
On October 29, 2002, Comelec adopted in its Resolution 02-0170 a modernization
program for the 2004 elections. It resolved to conduct biddings for the three (3) phases
of its Automated Election System; namely, Phase I - Voter Registration and Validation
System; Phase II - Automated Counting and Canvassing System; and Phase III -
Electronic Transmission.
On January 24, 2003, President Gloria Macapagal-Arroyo issued Executive Order
No. 172, which allocated the sum of P2.5 billion to fund the AES for the May 10, 2004
elections. Upon the request of Comelec, she authorized the release of an
additional P500 million.
On January 28, 2003, the Commission issued an Invitation to Apply for Eligibility
and to Bid, which we quote as follows:
INVITATION TO APPLY FOR ELIGIBILITY AND TO BID
The Commission on Elections (COMELEC), pursuant to the mandate of Republic Act Nos. 8189
and 8436, invites interested offerors, vendors, suppliers or lessors to apply for eligibility and to
bid for the procurement by purchase, lease, lease with option to purchase, or otherwise, supplies,
equipment, materials and services needed for a comprehensive Automated Election System,
consisting of three (3) phases: (a) registration/verification of voters, (b) automated counting and
consolidation of votes, and (c) electronic transmission of election results, with an approved
budget of TWO BILLION FIVE HUNDRED MILLION (Php2,500,000,000) Pesos.
Only bids from the following entities shall be entertained:
a. Duly licensed Filipino citizens/proprietorships;
b. Partnerships duly organized under the laws of the Philippines and of which at
least sixty percent (60%) of the interest belongs to citizens of the Philippines;
c. Corporations duly organized under the laws of the Philippines, and of which at
least sixty percent (60%) of the outstanding capital stock belongs to citizens of the
Philippines;
d. Manufacturers, suppliers and/or distributors forming themselves into a joint
venture, i.e., a group of two (2) or more manufacturers, suppliers and/or
distributors that intend to be jointly and severally responsible or liable for a
particular contract, provided that Filipino ownership thereof shall be at least sixty
percent (60%); and
e. Cooperatives duly registered with the Cooperatives Development Authority.
Bid documents for the three (3) phases may be obtained starting 10 February 2003, during office
hours from the Bids and Awards Committee (BAC) Secretariat/Office of Commissioner
Resurreccion Z. Borra, 7
th
Floor, Palacio del Governador, Intramuros, Manila, upon payment at
the Cash Division, Commission on Elections, in cash or cashiers check, payable to the
Commission on Elections, of a non-refundable amount of FIFTEEN THOUSAND PESOS
(Php15,000.00) for each phase. For this purpose, interested offerors, vendors, suppliers or
lessors have the option to participate in any or all of the three (3) phases of the comprehensive
Automated Election System.
A Pre-Bid Conference is scheduled on 13 February 2003, at 9:00 a.m. at the Session Hall,
Commission on Elections, Postigo Street, Intramuros, Manila. Should there be questions on the
bid documents, bidders are required to submit their queries in writing to the BAC Secretariat
prior to the scheduled Pre-Bid Conference.
Deadline for submission to the BAC of applications for eligibility and bid envelopes for the
supply of the comprehensive Automated Election System shall be at the Session Hall,
Commission on Elections, Postigo Street, Intramuros, Manila on 28 February 2003 at 9:00 a.m.
The COMELEC reserves the right to review the qualifications of the bidders after the bidding
and before the contract is executed. Should such review uncover any misrepresentation made in
the eligibility statements, or any changes in the situation of the bidder to materially downgrade
the substance of such statements, the COMELEC shall disqualify the bidder upon due notice
without any obligation whatsoever for any expenses or losses that may be incurred by it in the
preparation of its bid.
[9]

On February 11, 2003, Comelec issued Resolution No. 5929 clarifying certain
eligibility criteria for bidders and the schedule of activities for the project bidding, as
follows:
1.) Open to Filipino and foreign corporation duly registered and licensed to do
business and is actually doing business in the Philippines, subject to Sec. 43 of
RA 9184 (An Act providing In the Modernization Standardization and Regulation
of the Procurement Activities of the Government and for other purposes etc.)
2.) Track Record:
a) For counting machines should have been used in at least one (1) political
exercise with no less than Twenty Million Voters;
b) For verification of voters the reference site of an existing data base
installation using Automated Fingerprint Identification System (AFIS) with at
least Twenty Million.
3.) Ten percent (10%) equity requirement shall be based on the total project cost; and
4.) Performance bond shall be twenty percent (20%) of the bid offer.
RESOLVED moreover, that:
1) A. Due to the decision that the eligibility requirements and the rest of the Bid
documents shall be released at the same time, and the memorandum of Comm.
Resurreccion Z. Borra dated February 7, 2003, the documents to be released on
Friday, February 14, 2003 at 2:00 oclock p.m. shall be the eligibility criteria,
Terms of Reference (TOR) and other pertinent documents;
B. Pre-Bid conference shall be on February 18, 2003; and
C. Deadline for the submission and receipt of the Bids shall be on March 5, 2003.
2) The aforementioned documents will be available at the following offices:
a) Voters Validation: Office of Comm. Javier
b) Automated Counting Machines: Office of Comm. Borra
c) Electronic Transmission: Office of Comm. Tancangco
[10]

On February 17, 2003, the poll body released the Request for Proposal (RFP) to
procure the election automation machines. The Bids and Awards Committee (BAC) of
Comelec convened a pre-bid conference on February 18, 2003 and gave prospective
bidders until March 10, 2003 to submit their respective bids.
Among others, the RFP provided that bids from manufacturers, suppliers and/or
distributors forming themselves into a joint venture may be entertained, provided that
the Philippine ownership thereof shall be at least 60 percent. Joint venture is defined in
the RFP as a group of two or more manufacturers, suppliers and/or distributors that
intend to be jointly and severally responsible or liable for a particular contract.
[11]

Basically, the public bidding was to be conducted under a two-envelope/two stage
system. The bidders first envelope or the Eligibility Envelope should establish the
bidders eligibility to bid and its qualifications to perform the acts if accepted. On the
other hand, the second envelope would be the Bid Envelope itself. The RFP outlines
the bidding procedures as follows:
25. Determination of Eligibility of Prospective Bidders
25.1 The eligibility envelopes of prospective Bidders shall be opened first to
determine their eligibility. In case any of the requirements specified in Clause 20 is
missing from the first bid envelope, the BAC shall declare said prospective Bidder as
ineligible to bid. Bid envelopes of ineligible Bidders shall be immediately returned
unopened.
25.2 The eligibility of prospective Bidders shall be determined using simple pass/fail
criteria and shall be determined as either eligible or ineligible. If the prospective
Bidder is rated passed for all the legal, technical and financial requirements, he shall
be considered eligible. If the prospective Bidder is rated failed in any of the
requirements, he shall be considered ineligible.
26. Bid Examination/Evaluation
26.1 The BAC will examine the Bids to determine whether they are complete, whether
any computational errors have been made, whether required securities have been
furnished, whether the documents have been properly signed, and whether the Bids are
generally in order.
26.2 The BAC shall check the submitted documents of each Bidder against the
required documents enumerated under Clause 20, to ascertain if they are all present in
the Second bid envelope (Technical Envelope). In case one (1) or more of the required
documents is missing, the BAC shall rate the Bid concerned as failed and
immediately return to the Bidder its Third bid envelope (Financial Envelope)
unopened. Otherwise, the BAC shall rate the first bid envelope as passed.
26.3 The BAC shall immediately open the Financial Envelopes of the Bidders whose
Technical Envelopes were passed or rated on or above the passing score. Only Bids
that are determined to contain all the bid requirements for both components shall be
rated passed and shall immediately be considered for evaluation and comparison.
26.4 In the opening and examination of the Financial Envelope, the BAC shall
announce and tabulate the Total Bid Price as calculated. Arithmetical errors will be
rectified on the following basis: If there is a discrepancy between words and figures, the
amount in words will prevail. If there is a discrepancy between the unit price and the
total price that is obtained by multiplying the unit price and the quantity, the unit price
shall prevail and the total price shall be corrected accordingly. If there is a discrepancy
between the Total Bid Price and the sum of the total prices, the sum of the total prices
prevail and the Total Bid Price shall be corrected accordingly.
26.5 Financial Proposals which do not clearly state the Total Bid Price shall be
rejected. Also, Total Bid Price as calculated that exceeds the approved budget for the
contract shall also be rejected.
27. Comparison of Bids
27.1 The bid price shall be deemed to embrace all costs, charges and fees associated
with carrying out all the elements of the proposed Contract, including but not limited
to, license fees, freight charges and taxes.
27.2 The BAC shall establish the calculated prices of all Bids rated passed and rank
the same in ascending order.
x x x x x x x x x
29. Postqualification
29.1 The BAC will determine to its satisfaction whether the Bidder selected as having
submitted the lowest calculated bid is qualified to satisfactorily perform the Contract.
29.2 The determination will take into account the Bidders financial, technical and
production capabilities/resources. It will be based upon an examination of the
documentary evidence of the Bidders qualification submitted by the Bidder as well as
such other information as the BAC deems necessary and appropriate.
29.3 A bid determined as not substantially responsive will be rejected by the BAC and
may not subsequently be made responsive by the Bidder by correction of the non-
conformity.
29.4 The BAC may waive any informality or non-conformity or irregularity in a bid
which does not constitute a material deviation, provided such waiver does not prejudice
or affect the relative ranking of any Bidder.
29.5 Should the BAC find that the Bidder complies with the legal, financial and
technical requirements, it shall make an affirmative determination which shall be a
prerequisite for award of the Contract to the Bidder. Otherwise, it will make a negative
determination which will result in rejection of the Bidders bid, in which event the BAC
will proceed to the next lowest calculated bid to make a similar determination of that
Bidders capabilities to perform satisfactorily.
[12]

Out of the 57 bidders,
[13]
the BAC found MPC and the Total Information
Management Corporation (TIMC) eligible. For technical evaluation, they were referred
to the BACs Technical Working Group (TWG) and the Department of Science and
Technology (DOST).
In its Report on the Evaluation of the Technical Proposals on Phase II, DOST said
that both MPC and TIMC had obtained a number of failed marks in the technical
evaluation. Notwithstanding these failures, Comelec en banc, on April 15, 2003,
promulgated Resolution No. 6074 awarding the project to MPC. The Commission
publicized this Resolution and the award of the project to MPC on May 16, 2003.
On May 29, 2003, five individuals and entities (including the herein Petitioners
Information Technology Foundation of the Philippines, represented by its president,
Alfredo M. Torres; and Ma. Corazon Akol) wrote a letter
[14]
to Comelec Chairman
Benjamin Abalos Sr. They protested the award of the Contract to Respondent MPC
due to glaring irregularities in the manner in which the bidding process had been
conducted. Citing therein the noncompliance with eligibility as well as technical and
procedural requirements (many of which have been discussed at length in the Petition),
they sought a re-bidding.
In a letter-reply dated June 6, 2003,
[15]
the Comelec chairman -- speaking through
Atty. Jaime Paz, his head executive assistant -- rejected the protest and declared that
the award would stand up to the strictest scrutiny.
Hence, the present Petition.
[16]

The Issues
In their Memorandum, petitioners raise the following issues for our consideration:
1. The COMELEC awarded and contracted with a non-eligible entity; x x x
2. Private respondents failed to pass the Technical Test as required in the RFP.
Notwithstanding, such failure was ignored. In effect, the COMELEC changed the
rules after the bidding in effect changing the nature of the contract bidded upon.
3. Petitioners have locus standi.
4. Instant Petition is not premature. Direct resort to the Supreme Court is
justified.
[17]

In the main, the substantive issue is whether the Commission on Elections, the
agency vested with the exclusive constitutional mandate to oversee elections, gravely
abused its discretion when, in the exercise of its administrative functions, it awarded to
MPC the contract for the second phase of the comprehensive Automated Election
System.
Before discussing the validity of the award to MPC, however, we deem it proper to
first pass upon the procedural issues: the legal standing of petitioners and the alleged
prematurity of the Petition.
This Courts Ruling
The Petition is meritorious.
First Procedural Issue:
Locus Standi of Petitioners
Respondents chorus that petitioners do not possess locus standi, inasmuch as they
are not challenging the validity or constitutionality of RA 8436. Moreover, petitioners
supposedly admitted during the Oral Argument that no law had been violated by the
award of the Contract. Furthermore, they allegedly have no actual and material interest
in the Contract and, hence, do not stand to be injured or prejudiced on account of the
award.
On the other hand, petitioners -- suing in their capacities as taxpayers, registered
voters and concerned citizens -- respond that the issues central to this case are of
transcendental importance and of national interest. Allegedly, Comelecs flawed
bidding and questionable award of the Contract to an unqualified entity would impact
directly on the success or the failure of the electoral process. Thus, any taint on the
sanctity of the ballot as the expression of the will of the people would inevitably affect
their faith in the democratic system of government. Petitioners further argue that the
award of any contract for automation involves disbursement of public funds in
gargantuan amounts; therefore, public interest requires that the laws governing the
transaction must be followed strictly.
We agree with petitioners. Our nations political and economic future virtually hangs
in the balance, pending the outcome of the 2004 elections. Hence, there can be no
serious doubt that the subject matter of this case is a matter of public concern and
imbued with public interest;
[18]
in other words, it is of paramount public interest
[19]
and
transcendental importance.
[20]
This fact alone would justify relaxing the rule on legal
standing, following the liberal policy of this Court whenever a case involves an issue of
overarching significance to our society.
[21]
Petitioners legal standing should therefore
be recognized and upheld.
Moreover, this Court has held that taxpayers are allowed to sue when there is a
claim of illegal disbursement of public funds,
[22]
or if public money is being deflected to
any improper purpose;
[23]
or when petitioners seek to restrain respondent from wasting
public funds through the enforcement of an invalid or unconstitutional law.
[24]
In the
instant case, individual petitioners, suing as taxpayers, assert a material interest in
seeing to it that public funds are properly and lawfully used. In the Petition, they claim
that the bidding was defective, the winning bidder not a qualified entity, and the award
of the Contract contrary to law and regulation. Accordingly, they seek to restrain
respondents from implementing the Contract and,necessarily, from making any
unwarranted expenditure of public funds pursuant thereto. Thus, we hold that
petitioners possess locus standi.
Second Procedural Issue:
Alleged Prematurity Due to Non-Exhaustion
of Administrative Remedies
Respondents claim that petitioners acted prematurely, since they had not first
utilized the protest mechanism available to them under RA 9184, the Government
Procurement Reform Act, for the settlement of disputes pertaining to procurement
contracts.
Section 55 of RA 9184 states that protests against decisions of the Bidding and
Awards Committee in all stages of procurement may be lodged with the head of the
procuring entity by filing a verified position paper and paying a protest fee. Section 57
of the same law mandates that in no case shall any such protest stay or delay the
bidding process, but it must first be resolved before any award is made.
On the other hand, Section 58 provides that court action may be resorted to only
after the protests contemplated by the statute shall have been completed. Cases filed
in violation of this process are to be dismissed for lack of jurisdiction. Regional trial
courts shall have jurisdiction over final decisions of the head of the procuring entity, and
court actions shall be instituted pursuant to Rule 65 of the 1997 Rules of Civil
Procedure.
Respondents assert that throughout the bidding process, petitioners never
questioned the BAC Report finding MPC eligible to bid and recommending the award of
the Contract to it (MPC). According to respondents, the Report should have been
appealed to the Comelec en banc, pursuant to the aforementioned sections of RA
9184. In the absence of such appeal, the determination and recommendation of the
BAC had become final.
The Court is not persuaded.
Respondent Comelec came out with its en banc Resolution No. 6074 dated April
15, 2003, awarding the project to Respondent MPC even before the BAC managed to
issue its written report and recommendation on April 21, 2003. Thus, how could
petitioners have appealed the BACs recommendation or report to the head of the
procuring entity (the chairman of Comelec), when the Comelec en banc had already
approved the award of the contract to MPC even before petitioners learned of the BAC
recommendation?
It is claimed
[25]
by Comelec that during its April 15, 2003 session, it received and
approved the verbal report and recommendation of the BAC for the award of the
Contract to MPC, and that the BAC subsequently re-affirmed its verbal report and
recommendation by submitting it in writing on April 21, 2003. Respondents insist that
the law does not require that the BAC Report be in writing before Comelec can act
thereon; therefore, there is allegedly nothing irregular about the Report as well as the en
banc Resolution.
However, it is obvious that petitioners could have appealed the BACs report and
recommendation to the head of the procuring entity (the Comelec chair) only upon
their discoverythereof, which at the very earliest would have been on April 21, 2003,
when the BAC actually put its report in writing and finally released it. Even then, what
would have been the use of protesting/appealing the report to the Comelec chair, when
by that time the Commission en banc (including the chairman himself) had already
approved the BAC Report and awarded the Contract to MPC?
And even assuming arguendo that petitioners had somehow gotten wind of the
verbal BAC report on April 15, 2003 (immediately after the en banc session), at that
point the Commission en banc had already given its approval to the BAC Report along
with the award to MPC. To put it bluntly, the Comelec en banc itself made it legally
impossible for petitioners to avail themselves of the administrative remedy that the
Commission is so impiously harping on. There is no doubt that they had not been
accorded the opportunity to avail themselves of the process provided under Section 55
of RA 9184, according to which a protest against a decision of the BAC may be
filed with the head of the procuring entity. Nemo tenetur ad impossible,
[26]
to borrow
private respondents favorite Latin excuse.
[27]

Some Observations on the
BAC Report to the Comelec
We shall return to this issue of alleged prematurity shortly, but at this interstice, we
would just want to put forward a few observations regarding the BAC Report and the
Comelec en bancs approval thereof.
First, Comelec contends that there was nothing unusual about the fact that the
Report submitted by the BAC came only after the former had already awarded the
Contract, because the latter had been asked to render its report and recommendation
orally during the Commissions en banc session on April 15, 2003. Accordingly,
Comelec supposedly acted upon such oral recommendation and approved the award to
MPC on the same day, following which the recommendation was subsequently reduced
into writing on April 21, 2003. While not entirely outside the realm of the possible, this
interesting and unique spiel does not speak well of the process that Comelec
supposedly went through in making a critical decision with respect to a multi-billion-peso
contract.
We can imagine that anyone else standing in the shoes of the Honorable
Commissioners would have been extremely conscious of the overarching need for utter
transparency. They would have scrupulously avoided the slightest hint of impropriety,
preferring to maintain an exacting regularity in the performance of their duties, instead
of trying to break a speed record in the award of multi-billion-peso contracts. After all,
between April 15 and April 21 were a mere six (6) days. Could Comelec not have
waited out six more days for the written report of the BAC, instead of rushing pell-mell
into the arms of MPC? Certainly, respondents never cared to explain the nature of the
Commissions dire need to act immediately without awaiting the formal, written BAC
Report.
In short, the Court finds it difficult to reconcile the uncommon dispatch with which
Comelec acted to approve the multi-billion-peso deal, with its claim of having been
impelled by only the purest and most noble of motives.
At any rate, as will be discussed later on, several other factors combine to
lend negative credence to Comelecs tale.
Second, without necessarily ascribing any premature malice or premeditation on the
part of the Comelec officials involved, it should nevertheless be conceded that this cart-
before-the-horse maneuver (awarding of the Contract ahead of the BACs written report)
would definitely serve as a clever and effective way of averting and frustrating any
impending protest under Section 55.
Having made the foregoing observations, we now go back to the question of
exhausting administrative remedies. Respondents may not have realized it, but the
letter addressed to Chairman Benjamin Abalos Sr. dated May 29, 2003
[28]
serves to
eliminate the prematurity issue as it was an actual written protest against the decision of
the poll body to award the Contract. The letter was signed by/for, inter alia, two of
herein petitioners: the Information Technology Foundation of the Philippines,
represented by its president, Alfredo M. Torres; and Ma. Corazon Akol.
Such letter-protest is sufficient compliance with the requirement to exhaust
administrative remedies particularly because it hews closely to the procedure outlined in
Section 55 of RA 9184.
And even without that May 29, 2003 letter-protest, the Court still holds that
petitioners need not exhaust administrative remedies in the light of Paat v. Court of
Appeals.
[29]
Paatenumerates the instances when the rule on exhaustion of
administrative remedies may be disregarded, as follows:
(1) when there is a violation of due process,
(2) when the issue involved is purely a legal question,
(3) when the administrative action is patently illegal amounting to lack or excess of
jurisdiction,
(4) when there is estoppel on the part of the administrative agency concerned,
(5) when there is irreparable injury,
(6) when the respondent is a department secretary whose acts as an alter ego of the
President bears the implied and assumed approval of the latter,
(7) when to require exhaustion of administrative remedies would be unreasonable,
(8) when it would amount to a nullification of a claim,
(9) when the subject matter is a private land in land case proceedings,
(10) when the rule does not provide a plain, speedy and adequate remedy, and
(11) when there are circumstances indicating the urgency of judicial intervention.
[30]

The present controversy precisely falls within the exceptions listed as Nos. 7, 10
and 11: (7) when to require exhaustion of administrative remedies would be
unreasonable; (10) when the rule does not provide a plain, speedy and adequate
remedy, and (11) when there are circumstances indicating the urgency of judicial
intervention. As already stated, Comelec itself made the exhaustion of administrative
remedies legally impossible or, at the very least, unreasonable.
In any event, the peculiar circumstances surrounding the unconventional rendition
of the BAC Report and the precipitate awarding of the Contract by the Comelec en banc
-- plus the fact that it was racing to have its Contract with MPC implemented in time for
the elections in May 2004 (barely four months away) -- have combined to bring about
the urgent need for judicial intervention, thus prompting this Court to dispense with the
procedural exhaustion of administrative remedies in this case.
Main Substantive Issue:
Validity of the Award to MPC
We come now to the meat of the controversy. Petitioners contend that the award
is invalid, since Comelec gravely abused its discretion when it did the following:
1. Awarded the Contract to MPC though it did not even participate in the bidding
2. Allowed MPEI to participate in the bidding despite its failure to meet the
mandatory eligibility requirements
3. Issued its Resolution of April 15, 2003 awarding the Contract to MPC despite the
issuance by the BAC of its Report, which formed the basis of the assailed Resolution,
only on April 21, 2003
[31]

4. Awarded the Contract, notwithstanding the fact that during the bidding process,
there were violations of the mandatory requirements of RA 8436 as well as those set
forth in Comelecs own Request for Proposal on the automated election system
5. Refused to declare a failed bidding and to conduct a re-bidding despite the
failure of the bidders to pass the technical tests conducted by the Department of
Science and Technology
6. Failed to follow strictly the provisions of RA 8436 in the conduct of the bidding for
the automated counting machines
After reviewing the slew of pleadings as well as the matters raised during the Oral
Argument, the Court deems it sufficient to focus discussion on the following major areas
of concernthat impinge on the issue of grave abuse of discretion:
A. Matters pertaining to the identity, existence and eligibility of MPC as a bidder
B. Failure of the automated counting machines (ACMs) to pass the DOST technical tests
C. Remedial measures and re-testings undertaken by Comelec and DOST after the award,
and their effect on the present controversy
A.
Failure to Establish the Identity,
Existence and Eligibility of the
Alleged Consortium as a Bidder
On the question of the identity and the existence of the real bidder, respondents
insist that, contrary to petitioners allegations, the bidder was not Mega Pacific
eSolutions, Inc. (MPEI), which was incorporated only on February 27, 2003, or 11 days
prior to the bidding itself. Rather, the bidder was Mega Pacific Consortium (MPC), of
which MPEI was but a part. As proof thereof, they point to the March 7, 2003 letter of
intent to bid, signed by the president of MPEI allegedly for and on behalf of MPC. They
also call attention to the official receipt issued to MPC, acknowledging payment for the
bidding documents, as proof that it was the consortium that participated in the bidding
process.
We do not agree. The March 7, 2003 letter, signed by only one signatory -- Willy
U. Yu, President, Mega Pacific eSolutions, Inc., (Lead Company/ Proponent) For: Mega
Pacific Consortium -- and without any further proof, does not by itself prove the
existence of the consortium. It does not show that MPEI or its president have been duly
pre-authorized by the other members of the putative consortium to represent them, to
bid on their collective behalf and, more important, to commit them jointly and severally
to the bid undertakings. The letter is purely self-serving and uncorroborated.
Neither does an official receipt issued to MPC, acknowledging payment for the
bidding documents, constitute proof that it was the purported consortium that
participated in the bidding. Such receipts are issued by cashiers without any legally
sufficient inquiry as to the real identity or existence of the supposed payor.
To assure itself properly of the due existence (as well as eligibility and qualification)
of the putative consortium, Comelecs BAC should have examined the bidding
documents submitted on behalf of MPC. They would have easily discovered the
following fatal flaws.
Two-Envelope,
Two-Stage System
As stated earlier in our factual presentation, the public bidding system designed by
Comelec under its RFP (Request for Proposal for the Automation of the 2004 Election)
mandated the use of a two-envelope, two-stage system. A bidders first
envelope (Eligibility Envelope) was meant to establish its eligibility to bid and its
qualifications and capacity to perform the contract if its bid was accepted, while
the second envelope would be the Bid Envelope itself.
The Eligibility Envelope was to contain legal documents such as articles of
incorporation, business registrations, licenses and permits, mayors permit, VAT
certification, and so forth;technical documents containing documentary evidence to
establish the track record of the bidder and its technical and production capabilities to
perform the contract; and financial documents, including audited financial statements for
the last three years, to establish the bidders financial capacity.
In the case of a consortium or joint venture desirous of participating in the bidding, it
goes without saying that the Eligibility Envelope would necessarily have to include a
copy of the joint venture agreement, the consortium agreement or memorandum of
agreement -- or a business plan or some other instrument of similar import --
establishing the due existence, composition and scope of such aggrupation. Otherwise,
how would Comelec know who it was dealing with, and whether these parties are
qualified and capable of delivering the products and services being offered for
bidding?
[32]

In the instant case, no such instrument was submitted to Comelec during the
bidding process. This fact can be conclusively ascertained by scrutinizing the two-inch
thick Eligibility Requirements file submitted by Comelec last October 9, 2003, in partial
compliance with this Courts instructions given during the Oral Argument. This file
purports to replicate the eligibility documents originally submitted to Comelec by MPEI
allegedly on behalf of MPC, in connection with the bidding conducted in March
2003. Included in the file are the incorporation papers and financial statements of the
members of the supposed consortium and certain certificates, licenses and permits
issued to them.
However, there is no sign whatsoever of any joint venture agreement, consortium
agreement, memorandum of agreement, or business plan executed among the members
of the purported consortium.
The only logical conclusion is that no such agreement was ever submitted to the
Comelec for its consideration, as part of the bidding process.
It thus follows that, prior the award of the Contract, there was no documentary or
other basis for Comelec to conclude that a consortium had actually been formed
amongst MPEI, SK C&C and WeSolv, along with Election.com and ePLDT.
[33]
Neither
was there anything to indicate the exact relationships between and among these firms;
their diverse roles, undertakings and prestations, if any, relative to the prosecution of
the project, the extent of their respective investments (if any) in the supposed
consortium or in the project; and the precise nature and extent of their respective
liabilities with respect to the contract being offered for bidding. And apart from the self-
serving letter of March 7, 2003, there was not even any indication that MPEI was the
lead company duly authorized to act on behalf of the others.
So, it necessarily follows that, during the bidding process, Comelec had no basis at
all for determining that the alleged consortium really existed and was eligible and
qualified; and that the arrangements among the members were satisfactory and
sufficient to ensure delivery on the Contract and to protect the governments interest.
Notwithstanding such deficiencies, Comelec still deemed the consortium eligible to
participate in the bidding, proceeded to open its Second Envelope, and eventually
awarded the bid to it, even though -- per the Comelecs own RFP -- the BAC should
have declared the MPC ineligible to bid and returned the Second (Bid) Envelope
unopened.
Inasmuch as Comelec should not have considered MPEI et al. as comprising a
consortium or joint venture, it should not have allowed them to avail themselves of the
provision in Section 5.4 (b) (i) of the IRR for RA 6957 (the Build-Operate-Transfer Law),
as amended by RA 7718. This provision states in part that a joint venture/consortium
proponent shall be evaluated based on the individual or collective experience of the
member-firms of the joint venture or consortium and of the contractor(s) that it has
engaged for the project. Parenthetically, respondents have uniformly argued that the
said IRR of RA 6957, as amended, have suppletory application to the instant case.
Hence, had the proponent MPEI been evaluated based solely on its own
experience, financial and operational track record or lack thereof, it would surely not
have qualified and would have been immediately considered ineligible to bid, as
respondents readily admit.
At any rate, it is clear that Comelec gravely abused its discretion in arbitrarily failing
to observe its own rules, policies and guidelines with respect to the bidding process,
thereby negating a fair, honest and competitive bidding.
Commissioners Not
Aware of Consortium
In this regard, the Court is beguiled by the statements of Commissioner Florentino
Tuason Jr., given in open court during the Oral Argument last October 7, 2003. The
good commissioner affirmed that he was aware, of his own personal knowledge, that
there had indeed been a written agreement among the consortium
members,
[34]
although it was an internal matter among them,
[35]
and of the fact that it
would be presented by counsel for private respondent.
[36]

However, under questioning by Chief Justice Hilario G. Davide Jr. and Justice Jose
C. Vitug, Commissioner Tuason in effect admitted that, while he was the commissioner-
in-charge of Comelecs Legal Department, he had never seen, even up to that late date,
the agreement he spoke of.
[37]
Under further questioning, he was likewise unable to
provide any information regarding the amounts invested into the project by several
members of the claimed consortium.
[38]
A short while later, he admitted that the
Commission had not taken a look at the agreement (if any).
[39]

He tried to justify his position by claiming that he was not a member of the
BAC. Neither was he the commissioner-in-charge of the Phase II Modernization project
(the automated election system); but that, in any case, the BAC and the Phase II
Modernization Project Team did look into the aspect of the composition of the
consortium.
It seems to the Court, though, that even if the BAC or the Phase II Team had taken
charge of evaluating the eligibility, qualifications and credentials of the consortium-
bidder, still, in all probability, the former would have referred the task to Commissioner
Tuason, head of Comelecs Legal Department. That task was the appreciation and
evaluation of the legal effects and consequences of the terms, conditions, stipulations
and covenants contained in any joint venture agreement, consortium agreement or a
similar document -- assuming of course that any of these was available at the time. The
fact that Commissioner Tuason was barely aware of the situation bespeaks the
complete absence of such document, or the utter failure or neglect of the Comelec to
examine it -- assuming it was available at all -- at the time the award was made on April
15, 2003.
In any event, the Court notes for the record that Commissioner Tuason basically
contradicted his statements in open court about there being one written agreement
among all the consortium members, when he subsequently referred
[40]
to the four (4)
Memoranda of Agreement (MOAs) executed by them.
[41]

At this juncture, one might ask: What, then, if there are four MOAs instead of one or
none at all? Isnt it enough that there are these corporations coming together to carry
out the automation project? Isnt it true, as respondent aver, that nowhere in the RFP
issued by Comelec is it required that the members of the joint venture execute a single
written agreement to prove the existence of a joint venture. Indeed, the intention to be
jointly and severally liable may be evidenced not only by a single joint venture
agreement, but also by supplementary documents executed by the parties signifying
such intention. What then is the big deal?
The problem is not that there are four agreements instead of only one. The problem
is that Comelec never bothered to check. It never based its decision on documents or
other proof that would concretely establish the existence of the claimed consortium or
joint venture or agglomeration. It relied merely on the self-serving representation in an
uncorroborated letter signed by only one individual, claiming that his company
represented a consortium of several different corporations. It concluded forthwith that
a consortium indeed existed, composed of such and such members, and thereafter
declared that the entity was eligible to bid.
True, copies of financial statements and incorporation papers of the alleged
consortium members were submitted. But these papers did not establish the
existence of a consortium, as they could have been provided by the companies
concerned for purposes other than to prove that they were part of a consortium or joint
venture. For instance, the papers may have been intended to show that those
companies were each qualified to be a sub-contractor (and nothing more) in a major
project. Those documents did not by themselves support the assumption that a
consortium or joint venture existed among the companies.
In brief, despite the absence of competent proof as to the existence and eligibility of
the alleged consortium (MPC), its capacity to deliver on the Contract, and the members
joint and several liability therefor, Comelec nevertheless assumed that such consortium
existed and was eligible. It then went ahead and considered the bid of MPC, to which
the Contract was eventually awarded, in gross violation of the formers own bidding
rules and procedures contained in its RFP. Therein lies Comelecs grave abuse of
discretion.
Sufficiency of the
Four Agreements
Instead of one multilateral agreement executed by, and effective and binding on, all
the five consortium members -- as earlier claimed by Commissioner Tuason in open
court -- it turns out that what was actually executed were four (4) separate and distinct
bilateral Agreements.
[42]
Obviously, Comelec was furnished copies of these
Agreements only after the bidding process had been terminated, as these were not
included in the Eligibility Documents. These Agreements are as follows:
A Memorandum of Agreement between MPEI and SK C&C
A Memorandum of Agreement between MPEI and WeSolv
A Teaming Agreement between MPEI and Election.com Ltd.
A Teaming Agreement between MPEI and ePLDT.
In sum, each of the four different and separate bilateral Agreements is valid and
binding only between MPEI and the other contracting party, leaving the other
consortium members total strangers thereto. Under this setup, MPEI
dealt separately with each of the members, and the latter (WeSolv, SK C&C,
Election.com, and ePLDT) in turn had nothing to do with one another, each dealing only
with MPEI.
Respondents assert that these four Agreements were sufficient for the purpose of
enabling the corporations to still qualify (even at that late stage) as a consortium or joint
venture, since the first two Agreements had allegedly set forth the joint and several
undertakings among the parties, whereas the latter two clarified the parties respective
roles with regard to the Project, with MPEI being the independent contractor and
Election.com and ePLDT the subcontractors.
Additionally, the use of the phrase particular contract in the Comelecs Request for
Proposal (RFP), in connection with the joint and several liabilities of companies in a joint
venture, is taken by them to mean that all the members of the joint venture need not be
solidarily liable for the entire project or joint venture, because it is sufficient that the lead
company and the member in charge of a particular contract or aspect of the joint
venture agree to be solidarily liable.
At this point, it must be stressed most vigorously that the submission of the four
bilateral Agreements to Comelec after the end of the bidding process did nothing to
eliminate the grave abuse of discretion it had already committed on April 15, 2003.
Deficiencies Have
Not Been Cured
In any event, it is also claimed that the automation Contract awarded by Comelec
incorporates all documents executed by the consortium members, even if these
documents are not referred to therein. The basis of this assertion appears to be the
passages from Section 1.4 of the Contract, which is reproduced as follows:
All Contract Documents shall form part of the Contract even if they or any one of them is not
referred to or mentioned in the Contract as forming a part thereof. Each of the Contract
Documents shall be mutually complementary and explanatory of each other such that what is
noted in one although not shown in the other shall be considered contained in all, and what is
required by any one shall be as binding as if required by all, unless one item is a correction of the
other.
The intent of the Contract Documents is the proper, satisfactory and timely execution and
completion of the Project, in accordance with the Contract Documents. Consequently, all items
necessary for the proper and timely execution and completion of the Project shall be deemed
included in the Contract.
Thus, it is argued that whatever perceived deficiencies there were in the
supplementary contracts -- those entered into by MPEI and the other members of the
consortium as regards their joint and several undertakings -- have been cured. Better
still, such deficiencies have supposedly been prevented from arising as a result of the
above-quoted provisions, from which it can be immediately established that each of the
members of MPC assumes the same joint and several liability as the other members.
The foregoing argument is unpersuasive. First, the contract being referred to,
entitled The Automated Counting and Canvassing Project Contract, is between
Comelec and MPEI, not the alleged consortium, MPC. To repeat, it is MPEI -- not MPC
-- that is a party to the Contract. Nowhere in that Contract is there any mention of a
consortium or joint venture, of members thereof, much less of joint and several
liability. Supposedly executed sometime in May 2003,
[43]
the Contract bears a
notarization date of June 30, 2003, and contains the signature of Willy U. Yu signing as
president of MPEI (not for and on behalf of MPC), along with that of the Comelec
chair. It provides in Section 3.2 that MPEI (not MPC) is to supply the Equipment and
perform the Services under the Contract, in accordance with the appendices thereof;
nothing whatsoever is said about any consortium or joint venture or partnership.
Second, the portions of Section 1.4 of the Contract reproduced above do not have
the effect of curing (much less preventing) deficiencies in the bilateral agreements
entered into by MPEI with the other members of the consortium, with respect to their
joint and several liabilities. The term Contract Documents, as used in the quoted
passages of Section 1.4, has a well-defined meaning and actually refers only to the
following documents:
The Contract itself along with its appendices
The Request for Proposal (also known as Terms of Reference) issued by
the Comelec, including the Tender Inquiries and Bid Bulletins
The Tender Proposal submitted by MPEI
In other words, the term Contract Documents cannot be understood as referring to
or including the MOAs and the Teaming Agreements entered into by MPEI with SK
C&C, WeSolv, Election.com and ePLDT. This much is very clear and admits of no
debate. The attempt to use the provisions of Section 1.4 to shore up the MOAs and the
Teaming Agreements is simply unwarranted.
Third and last, we fail to see how respondents can arrive at the conclusion that,
from the above-quoted provisions, it can be immediately established that each of the
members of MPC assumes the same joint and several liability as the other
members. Earlier, respondents claimed exactly the opposite -- that the two MOAs
(between MPEI and SK C&C, and between MPEI and WeSolv) had set forth the joint
and several undertakings among the parties; whereas the two Teaming
Agreements clarified the parties respective roles with regard to the Project, with MPEI
being the independent contractor and Election.com and ePLDT the subcontractors.
Obviously, given the differences in their relationships, their respective liabilities
cannot be the same. Precisely, the very clear terms and stipulations contained in the
MOAs and the Teaming Agreements -- entered into by MPEI with SK C&C, WeSolv,
Election.com and ePLDT -- negate the idea that these members are on a par with one
another and are, as such, assuming the same joint and several liability.
Moreover, respondents have earlier seized upon the use of the term particular
contract in the Comelecs Request for Proposal (RFP), in order to argue that all the
members of the joint venture did not need to be solidarily liable for the entire project or
joint venture. It was sufficient that the lead company and the member in charge of a
particular contract or aspect of the joint venture would agree to be solidarily liable. The
glaring lack of consistency leaves us at a loss. Are respondents trying to establish the
same joint and solidary liability among all the members or not?
Enforcement of
Liabilities Problematic
Next, it is also maintained that the automation Contract between Comelec and the
MPEI confirms the solidary undertaking of the lead company and the consortium
member concernedfor each particular Contract, inasmuch as the position of MPEI and
anyone else performing the services contemplated under the Contract is described
therein as that of an independent contractor.
The Court does not see, however, how this conclusion was arrived at. In the first
place, the contractual provision being relied upon by respondents is Article 14,
Independent Contractors, which states: Nothing contained herein shall be construed
as establishing or creating between the COMELEC and MEGA the relationship of
employee and employer or principal and agent, it being understood that the position of
MEGA and of anyone performing the Services contemplated under this Contract, is that
of an independent contractor.
Obviously, the intent behind the provision was simply to avoid the creation of an
employer-employee or a principal-agent relationship and the complications that it would
produce. Hence, the Article states that the role or position of MPEI, or anyone else
performing on its behalf, is that of an independent contractor. It is obvious to the Court
that respondents arestretching matters too far when they claim that, because of this
provision, the Contract in effect confirms the solidary undertaking of the lead company
and the consortium member concerned for the particular phase of the project. This
assertion is an absolute non sequitur.
Enforcement of Liabilities
Under the Civil Code Not Possible
In any event, it is claimed that Comelec may still enforce the liability of the
consortium members under the Civil Code provisions on partnership, reasoning that
MPEI et al. represented themselves as partners and members of MPC for purposes of
bidding for the Project. They are, therefore, liable to the Comelec to the extent that the
latter relied upon such representation. Their liability as partners is solidary with respect
to everything chargeable to the partnership under certain conditions.
The Court has two points to make with respect to this argument. First, it must be
recalled that SK C&C, WeSolv, Election.com and ePLDT never represented themselves
as partners and members of MPC, whether for purposes of bidding or for something
else. It was MPEI alone that represented them to be members of a consortium it
supposedly headed. Thus, its acts may not necessarily be held against the other
members.
Second, this argument of the OSG in its Memorandum
[44]
might possibly apply in the
absence of a joint venture agreement or some other writing that discloses the
relationship of the members with one another. But precisely, this case does not deal
with a situation in which there is nothing in writing to serve as reference, leaving
Comelec to rely on mere representations and therefore justifying a falling back on the
rules on partnership. For, again, the terms and stipulations of the MOAs entered into by
MPEI with SK C&C and WeSolv, as well as the Teaming Agreements of MPEI with
Election.com and ePLDT (copies of which have been furnished the Comelec) are very
clear with respect to the extent and the limitations of the firms respective liabilities.
In the case of WeSolv and SK C&C, their MOAs state that their liabilities, while joint
and several with MPEI, are limited only to the particular areas of work wherein their
services are engaged or their products utilized. As for Election.com and ePLDT, their
separate Teaming Agreements specifically ascribe to them the role of subcontractor
vis--vis MPEI as contractor and, based on the terms of their particular
agreements, neither Election.com nor ePLDT is, with MPEI, jointly and severally liable
to Comelec.
[45]
It follows then that in the instant case, there is no justification for anyone,
much less Comelec, to resort to the rules on partnership and partners liabilities.
Eligibility of a Consortium
Based on the Collective
Qualifications of Its Members
Respondents declare that, for purposes of assessing the eligibility of the bidder, the
members of MPC should be evaluated on a collective basis. Therefore, they contend,
the failure of MPEI to submit financial statements (on account of its recent
incorporation) should not by itself disqualify MPC, since the other members of the
consortium could meet the criteria set out in the RFP.
Thus, according to respondents, the collective nature of the undertaking of the
members of MPC, their contribution of assets and sharing of risks, and the community
of their interest in the performance of the Contract lead to these reasonable
conclusions: (1) that their collective qualifications should be the basis for evaluating
their eligibility; (2) that the sheer enormity of the project renders it improbable to expect
any single entity to be able to comply with all the eligibility requirements and undertake
the project by itself; and (3) that, as argued by the OSG, the RFP allows bids from
manufacturers, suppliers and/or distributors that have formed themselves into a joint
venture, in recognition of the virtual impossibility of a single entitys ability to respond to
the Invitation to Bid.
Additionally, argues the Comelec, the Implementing Rules and Regulations of RA
6957 (the Build-Operate-Transfer Law) as amended by RA 7718 would be applicable,
as proponents of BOT projects usually form joint ventures or consortiums. Under the
IRR, a joint venture/consortium proponent shall be evaluated based on the individual or
the collective experience of the member-firms of the joint venture/consortium and of the
contractors the proponent has engaged for the project.
Unfortunately, this argument seems to assume that the collective nature of the
undertaking of the members of MPC, their contribution of assets and sharing of risks,
and the community of their interest in the performance of the Contract entitle MPC to
be treated as a joint venture or consortium; and to be evaluated accordingly on the
basis of the members collective qualifications when, in fact, the evidence before the
Court suggest otherwise.
This Court in Kilosbayan v. Guingona
[46]
defined joint venture as an association of
persons or companies jointly undertaking some commercial enterprise; generally, all
contribute assets and share risks. It requires a community of interest in the
performance of the subject matter, a right to direct and govern the policy in connection
therewith, and [a] duty, which may be altered by agreement to share both in profit and
losses.
Going back to the instant case, it should be recalled that the automation Contract
with Comelec was not executed by the consortium MPC -- or by MPEI for and on
behalf of MPC -- but by MPEI, period. The said Contract contains no mention
whatsoever of any consortium or members thereof. This fact alone seems to contradict
all the suppositions about a joint undertaking that would normally apply to a joint venture
or consortium: that it is a commercial enterprise involving a community of interest, a
sharing of risks, profits and losses, and so on.
Now let us consider the four bilateral Agreements, starting with the Memorandum of
Agreement between MPEI and WeSolv Open Computing, Inc., dated March 5,
2003. The body of the MOA consists of just seven (7) short paragraphs that would
easily fit in one page. It reads as follows:
1. The parties agree to cooperate in successfully implementing the Project in the substance
and form as may be most beneficial to both parties and other subcontractors involved in the
Project.
2. Mega Pacific shall be responsible for any contract negotiations and signing with the
COMELEC and, subject to the latters approval, agrees to give WeSolv an opportunity to be
present at meetings with the COMELEC concerning WeSolvs portion of the Project.
3. WeSolv shall be jointly and severally liable with Mega Pacific only for the particular
products and/or services supplied by the former for the Project.
4. Each party shall bear its own costs and expenses relative to this agreement unless
otherwise agreed upon by the parties.
5. The parties undertake to do all acts and such other things incidental to, necessary or
desirable or the attainment of the objectives and purposes of this Agreement.
6. In the event that the parties fail to agree on the terms and conditions of the supply of the
products and services including but not limited to the scope of the products and services to be
supplied and payment terms, WeSolv shall cease to be bound by its obligations stated in the
aforementioned paragraphs.
7. Any dispute arising from this Agreement shall be settled amicably by the parties whenever
possible. Should the parties be unable to do so, the parties hereby agree to settle their dispute
through arbitration in accordance with the existing laws of the Republic of the Philippines.
(Underscoring supplied.)
Even shorter is the Memorandum of Agreement between MPEI and SK C&C Co.
Ltd., dated March 9, 2003, the body of which consists of only six (6) paragraphs, which
we quote:
1. All parties agree to cooperate in achieving the Consortiums objective of successfully
implementing the Project in the substance and form as may be most beneficial to the Consortium
members and in accordance w/ the demand of the RFP.
2. Mega Pacific shall have full powers and authority to represent the Consortium with the
Comelec, and to enter and sign, for and in behalf of its members any and all agreement/s which
maybe required in the implementation of the Project.
3. Each of the individual members of the Consortium shall be jointly and severally liable
with the Lead Firm for the particular products and/or services supplied by such individual
member for the project, in accordance with their respective undertaking or sphere of
responsibility.
4. Each party shall bear its own costs and expenses relative to this agreement unless
otherwise agreed upon by the parties.
5. The parties undertake to do all acts and such other things incidental to, necessary or
desirable for the attainment of the objectives and purposes of this Agreement.
6. Any dispute arising from this Agreement shall be settled amicably by the parties whenever
possible. Should the parties be unable to do so, the parties hereby agree to settle their dispute
through arbitration in accordance with the existing laws of the Republic of the Philippines.
(Underscoring supplied.)
It will be noted that the two Agreements quoted above are very similar in
wording. Neither of them contains any specifics or details as to the exact nature and
scope of the parties respective undertakings, performances and deliverables under the
Agreement with respect to the automation project. Likewise, the two Agreements are
quite bereft of pesos-and-centavos data as to the amount of investments each party
contributes, its respective share in the revenues and/or profit from the Contract with
Comelec, and so forth -- all of which are normal for agreements of this nature. Yet,
according to public and private respondents, the participation of MPEI, WeSolv and SK
C&C comprises fully 90 percent of the entire undertaking with respect to the election
automation project, which is worth about P1.3 billion.
As for Election.com and ePLDT, the separate Teaming Agreements they entered
into with MPEI for the remaining 10 percent of the entire project undertaking are
ironically much longer and more detailed than the MOAs discussed earlier. Although
specifically ascribing to them the role of subcontractor vis--vis MPEI as contractor,
these Agreements are, however, completely devoid of any pricing data or payment
terms. Even the appended Schedules supposedly containing prices of goods and
services are shorn of any price data. Again, as mentioned earlier, based on the terms
of their particular Agreements, neither Election.com nor ePLDT -- with MPEI -- is jointly
and severally liable to Comelec.
It is difficult to imagine how these bare Agreements -- especially the first two --
could be implemented in practice; and how a dispute between the parties or a claim by
Comelec against them, for instance, could be resolved without lengthy and debilitating
litigations. Absent any clear-cut statement as to the exact nature and scope of the
parties respective undertakings, commitments, deliverables and covenants, one party
or another can easily dodge its obligation and deny or contest its liability under the
Agreement; or claim that it is the other party that should have delivered but failed to.
Likewise, in the absence of definite indicators as to the amount of investments to be
contributed by each party, disbursements for expenses, the parties respective shares in
the profits and the like, it seems to the Court that this situation could readily give rise to
all kinds of misunderstandings and disagreements over money matters.
Under such a scenario, it will be extremely difficult for Comelec to enforce the
supposed joint and several liabilities of the members of the consortium. The Court is
not even mentioning the possibility of a situation arising from a failure of WeSolv and
MPEI to agree on the scope, the terms and the conditions for the supply of the products
and services under the Agreement. In that situation, by virtue of paragraph 6 of its
MOA, WeSolv would perforce cease to be bound by its obligations -- including its joint
and solidary liability with MPEI under the MOA -- and could forthwith disengage from the
project. Effectively, WeSolv could at any time unilaterally exit from its MOA with MPEI
by simply failing to agree. Where would that outcome leave MPEI and Comelec?
To the Court, this strange and beguiling arrangement of MPEI with the other
companies does not qualify them to be treated as a consortium or joint venture, at least
of the type that government agencies like the Comelec should be dealing with. With
more reason is it unable to agree to the proposal to evaluate the members of MPC on a
collective basis.
In any event, the MPC members claim to be a joint venture/consortium; and
respondents have consistently been arguing that the IRR for RA 6957, as amended,
should be applied to the instant case in order to allow a collective evaluation of
consortium members. Surprisingly, considering these facts, respondents have not
deemed it necessary for MPC members to comply with Section 5.4 (a) (iii) of the IRR for
RA 6957 as amended.
According to the aforementioned provision, if the project proponent is a joint venture
or consortium, the members or participants thereof are required to submit a sworn
statement that, if awarded the contract, they shall bind themselves to be jointly,
severally and solidarily liable for the project proponents obligations thereunder. This
provision was supposed to mirror Section 5 of RA 6957, as amended, which states: In
all cases, a consortium that participates in a bid must present proof that the members of
the consortium have bound themselves jointly and severally to assume responsibility for
any project. The withdrawal of any member of the consortium prior to the
implementation of the project could be a ground for the cancellation of the contract.
The Court has certainly not seen any joint and several undertaking by the MPC
members that even approximates the tenor of that which is described above. We fail to
see why respondents should invoke the IRR if it is for their benefit, but refuse to comply
with it otherwise.
B.
DOST Technical Tests Flunked by the
Automated Counting Machines
Let us now move to the second subtopic, which deals with the substantive
issue: the ACMs failure to pass the tests of the Department of Science and Technology
(DOST).
After respondent consortium and the other bidder, TIM, had submitted their
respective bids on March 10, 2003, the Comelecs BAC -- through its Technical Working
Group (TWG) and the DOST -- evaluated their technical proposals. Requirements that
were highly technical in nature and that required the use of certain equipment in the
evaluation process were referred to the DOST for testing. The Department reported
thus:
TEST RESULTS MATRIX
[47]

[Technical Evaluation of Automated Counting Machine]
KEY REQUIREMENTS
[QUESTIONS]
MEGA-PACIFIC
CONSORTIUM
TOTAL
INFORMATION
MANAGEMENT
YES NO YES NO
1. Does the machine have
an accuracy rating of at
least 99.995 percent
At
COLD environmental
condition
At NORMAL
environmental conditions
At HARSH environmental
conditions




















2. Accurately records and
reports the date and time
of the start and end of
counting of ballots per
precinct?

3. Prints election returns
without any loss of date
during generation of such
reports?

4. Uninterruptible back-up
power system, that will
engage immediately to
allow operation of at least
10 minutes after outage,
power surge or abnormal
electrical occurrences?
5. Machine reads two-sided
ballots in one pass?


Note: This
particular
requirement
needs further
verification
6. Machine can detect
previously counted ballots
and prevent previously
counted ballots from
being counted more than
once?

7. Stores results of counted
votes by precinct in
external (removable)
storage device?


Note: This
particular
requirement
needs further
verification
8. Data stored in external
media is encrypted?


Note: This
particular
requirement
needs further
verification
9. Physical key or similar
device allows, limits, or
restricts operation of the
machine?

10. CPU speed is at least
400mHz?


Note: This
particular
requirement
needs further
verification
11. Port to allow use of dot-
matrix printers?

12. Generates printouts of the
election returns in a
format specified by the
COMELEC?
Generates printouts
In format specified by
COMELEC






















13. Prints election returns
without any loss of data
during generation of such
report?

14. Generates an audit trail of
the counting machine,
both hard copy and soft
copy?

Hard copy

Soft copy


















Note: This
particular
requirement
needs further
verification
15. Does the City/Municipal
Canvassing System
consolidate results from
all precincts within it
using the encrypted soft
copy of the data generated
by the counting machine
and stored on the
removable data storage


Note: This
particular
requirement
needs further
verification
device?
16. Does the City/Municipal
Canvassing System
consolidate results from
all precincts within it
using the encrypted soft
copy of the data generated
by the counting machine
and transmitted through
an electronic transmission
media?


Note: This
particular
requirement
needs further
verification


Note: This
particular
requirement
needs further
verification
17. Does the system output a
Zero City/Municipal
Canvass Report, which is
printed on election day
prior to the conduct of the
actual canvass operation,
that shows that all totals
for all the votes for all the
candidates and other
information, are indeed
zero or null?


Note: This
particular
requirement
needs further
verification
18. Does the system
consolidate results from
all precincts in the
city/municipality using
the data storage device
coming from the counting
machine?


Note: This
particular
requirement
needs further
verification
19. Is the machine 100%
accurate?


Note: This
particular
requirement
needs further
verification
20. Is the Program able to
detect previously
downloaded precinct
results and prevent these
from being inputted again
into the System?


Note: This
particular
requirement
needs further
verification
21. The System is able to
print the specified reports
and the audit trail without





any loss of data during
generation of the above-
mentioned reports?
Prints specified
reports
Audit Trail

















Note: This
particular
requirement
needs further
verification
22. Can the result of the
city/municipal
consolidation be stored in
a data storage device?


Note: This
particular
requirement
needs further
verification
23. Does the system
consolidate results from
all precincts in the
provincial/district/
national using the data
storage device from
different levels of
consolidation?



Note: This
particular
requirement
needs further
verification
24. Is the system 100%
accurate?











Note: This
particular
requirement
needs further
verification
25. Is the Program able to
detect previously
downloaded precinct




Note: This
results and prevent these
from being inputted again
into the System?




particular
requirement
needs further
verification
26. The System is able to
print the specified reports
and the audit trail without
any loss of data during
generation of the
abovementioned reports?
Prints specified reports
Audit Trail








































Note: This
particular
requirement
needs further
verification

27. Can the results of the
provincial/district/national
consolidation be stored in
a data storage device?


Note: This
particular
requirement
needs further
verification
According to respondents, it was only after the TWG and the DOST had conducted
their separate tests and submitted their respective reports that the BAC, on the basis of
these reports formulated its comments/recommendations on the bids of the consortium
and TIM.
The BAC, in its Report dated April 21, 2003, recommended that the Phase II project
involving the acquisition of automated counting machines be awarded to MPEI. It said:
After incisive analysis of the technical reports of the DOST and the Technical Working Group
for Phase II Automated Counting Machine, the BAC considers adaptability to advances in
modern technology to ensure an effective and efficient method, as well as the security and
integrity of the system.
The results of the evaluation conducted by the TWG and that of the DOST (14 April 2003
report), would show the apparent advantage of Mega-Pacific over the other competitor, TIM.
The BAC further noted that both Mega-Pacific and TIM obtained some failed marks in the
technical evaluation. In general, the failed marks of Total Information Management as
enumerated above affect the counting machine itself which are material in nature, constituting
non-compliance to the RFP. On the other hand, the failed marks of Mega-Pacific are mere
formalities on certain documentary requirements which the BAC may waive as clearly indicated
in the Invitation to Bid.
In the DOST test, TIM obtained 12 failed marks and mostly attributed to the counting machine
itself as stated earlier. These are requirements of the RFP and therefore the BAC cannot
disregard the same.
Mega-Pacific failed in 8 items however these are mostly on the software which can be corrected
by reprogramming the software and therefore can be readily corrected.
The BAC verbally inquired from DOST on the status of the retest of the counting machines of
the TIM and was informed that the report will be forthcoming after the holy week. The BAC
was informed that the retest is on a different parameters theyre being two different machines
being tested. One purposely to test if previously read ballots will be read again and the other for
the other features such as two sided ballots.
The said machine and the software therefore may not be considered the same machine and
program as submitted in the Technical proposal and therefore may be considered an
enhancement of the original proposal.
Advance information relayed to the BAC as of 1:40 PM of 15 April 2003 by Executive Director
Ronaldo T. Viloria of DOST is that the result of the test in the two counting machines of TIM
contains substantial errors that may lead to the failure of these machines based on the specific
items of the RFP that DOST has to certify.
OPENING OF FINANCIAL BIDS
The BAC on 15 April 2003, after notifying the concerned bidders opened the financial bids in
their presence and the results were as follows:
Mega-Pacific:
Option 1 Outright purchase: Bid Price of Php1,248,949,088.00
Option 2 Lease option:
70% Down payment of cost of hardware or Php642,755,757.07
Remainder payable over 50 months or a total of Php642,755,757.07
Discount rate of 15% p.a. or 1.2532% per month.
Total Number of Automated Counting Machine 1,769 ACMs (Nationwide)
TIM:
Total Bid Price Php1,297,860,560.00
Total Number of Automated Counting Machine 2,272 ACMs (Mindanao and
NCR only)
Premises considered, it appears that the bid of Mega Pacific is the lowest calculated
responsive bid, and therefore, the Bids and Awards Committee (BAC) recommends that
the Phase II project re Automated Counting Machine be awarded to Mega Pacific
eSolutions, Inc.
[48]

The BAC, however, also stated on page 4 of its Report: Based on the 14 April 2003
report (Table 6) of the DOST, it appears that both Mega-Pacific and TIM (Total
Information Management Corporation) failed to meet some of the requirements. Below
is a comparative presentation of the requirements wherein Mega-Pacific or TIM or both
of them failed: x x x. What followed was a list of key requirements, referring to
technical requirements, and an indication of which of the two bidders had failed to meet
them.
Failure to Meet the
Required Accuracy Rating
The first of the key requirements was that the counting machines were to have
an accuracy rating of at least 99.9995 percent. The BAC Report indicates that both
Mega Pacific and TIM failed to meet this standard.
The key requirement of accuracy rating happens to be part and parcel of the
Comelecs Request for Proposal (RFP). The RFP, on page 26, even states that the
ballot counting machines and ballot counting software must have an accuracy rating of
99.9995% (not merely 99.995%) or better as certified by a reliable independent testing
agency.
When questioned on this matter during the Oral Argument, Commissioner Borra
tried to wash his hands by claiming that the required accuracy rating of 99.9995 percent
had been set by a private sector group in tandem with Comelec. He added that the
Commission had merely adopted the accuracy rating as part of the groups
recommended bid requirements, which it had not bothered to amend even after being
advised by DOST that such standard was unachievable. This excuse, however, does
not in any way lessen Comelecs responsibility to adhere to its own published bidding
rules, as well as to see to it that the consortium indeed meets the accuracy
standard. Whichever accuracy rating is the right standard -- whether 99.995 or 99.9995
percent -- the fact remains that the machines of the so-called consortium failed to even
reach the lesser of the two. On this basis alone, it ought to have been disqualified and
its bid rejected outright.
At this point, the Court stresses that the essence of public bidding is violated by the
practice of requiring very high standards or unrealistic specifications that cannot be met
-- like the 99.9995 percent accuracy rating in this case -- only to water them
down after the bid has been award. Such scheme, which discourages the entry of
prospective bona fide bidders, is in fact a sure indication of fraud in the bidding,
designed to eliminate fair competition. Certainly, if no bidder meets the mandatory
requirements, standards or specifications, then no award should be made and a failed
bidding declared.
Failure of Software to Detect
Previously Downloaded Data
Furthermore, on page 6 of the BAC Report, it appears that the consortium as well
as TIM failed to meet another key requirement -- for the counting machines software
program to beable to detect previously downloaded precinct results and to prevent
these from being entered again into the counting machine. This same deficiency
on the part of both bidders reappears on page 7 of the BAC Report, as a result of the
recurrence of their failure to meet the said key requirement.
That the ability to detect previously downloaded data at different canvassing or
consolidation levels is deemed of utmost importance can be seen from the fact that it is
repeated three times in the RFP. On page 30 thereof, we find the requirement that
the city/municipal canvassing system software must be able to detect previously
downloaded precinct results and prevent these from being inputted again into the
system. Again, on page 32 of the RFP, we read that the provincial/district canvassing
system software must be able to detect previously downloaded city/municipal results
and prevent these from being inputted again into the system. And once more, on
page 35 of the RFP, we find the requirement that the nationalcanvassing system
software must be able to detect previously downloaded provincial/district results and
prevent these from being inputted again into the system.
Once again, though, Comelec chose to ignore this crucial deficiency, which should
have been a cause for the gravest concern. Come May 2004, unscrupulous persons
may take advantage of and exploit such deficiency by repeatedly downloading and
feeding into the computers results favorable to a particular candidate or candidates. We
are thus confronted with the grim prospect of election fraud on a massive scale
by means of just a few key strokes. The marvels and woes of the electronic age!
Inability to Print
the Audit Trail
But that grim prospect is not all. The BAC Report, on pages 6 and 7, indicate that
the ACMs of both bidders were unable to print the audit trail without any loss of
data. In the case of MPC, the audit trail system was not yet incorporated into its
ACMs.
This particular deficiency is significant, not only to this bidding but to the cause of
free and credible elections. The purpose of requiring audit trails is to enable Comelec to
trace and verify the identities of the ACM operators responsible for data entry and
downloading, as well as the times when the various data were downloaded into the
canvassing system, in order to forestall fraud and to identify the perpetrators.
Thus, the RFP on page 27 states that the ballot counting machines and ballot
counting software must print an audit trail of all machine operations for documentation
and verification purposes. Furthermore, the audit trail must be stored on the internal
storage device and be available on demand for future printing and verifying. On pages
30-31, the RFP also requires that the city/municipal canvassing system software be
able to print an audit trail of the canvassing operations, including therein such data as
the date and time the canvassing program was started, the log-in of the authorized
users (the identity of the machine operators), the date and time the canvass data were
downloaded into the canvassing system, and so on and so forth. On page 33 of the
RFP, we find the same audit trail requirement with respect to
the provincial/district canvassing system software; and again on pages 35-36 thereof,
the same audit trail requirement with respect to the national canvassing
system software.
That this requirement for printing audit trails is not to be lightly brushed aside by the
BAC or Comelec itself as a mere formality or technicality can be readily gleaned from
the provisions of Section 7 of RA 8436, which authorizes the Commission to use an
automated system for elections.
The said provision which respondents have quoted several times, provides that
ACMs are to possess certain features divided into two classes: those that the statute
itself considersmandatory and other features or capabilities that the law deems
optional. Among those considered mandatory are provisions for audit trails! Section 7
reads as follows: The Systemshall contain the following features: (a) use of
appropriate ballots; (b) stand-alone machine which can count votes and an automated
system which can consolidate the results immediately; (c) with provisions for audit
trails; (d) minimum human intervention; and (e) adequate safeguard/security
measures. (Italics and emphases supplied.)
In brief, respondents cannot deny that the provision requiring audit trails is indeed
mandatory, considering the wording of Section 7 of RA 8436. Neither can Respondent
Comelec deny that it has relied on the BAC Report, which indicates that the machines
or the software was deficient in that respect. And yet, the Commission simply
disregarded this shortcoming and awarded the Contract to private respondent, thereby
violating the very law it was supposed to implement.
C.
Inadequacy of Post Facto
Remedial Measures
Respondents argue that the deficiencies relating to the detection of previously
downloaded data, as well as provisions for audit trails, are mere shortcomings or minor
deficiencies in software or programming, which can be rectified. Perhaps Comelec
simply relied upon the BAC Report, which states on page 8 thereof that Mega Pacific
failed in 8 items[;] however these are mostly on the software which can be corrected by
re-programming x x x and therefore can be readily corrected.
The undersigned ponentes questions, some of which were addressed to
Commissioner Borra during the Oral Argument, remain unanswered to this day. First of
all, who made the determination that the eight fail marks of Mega Pacific were on
account of the software -- was it DOST or TWG? How can we be sure these failures
were not the results of machine defects? How was it determined that the software could
actually be re-programmed and thereby rectified? Di d a qual i fi ed techni cal expert
read and anal yze the source code
[ 49]
for the programs and conclude that these
could be saved and remedied? (Such determination cannot be done by any other
means save by the examination and analysis of the source code.)
Who was this qualified technical expert? When did he carry out the study? Did he
prepare a written report on his findings? Or did the Comelec just make a wild guess? It
does not follow that all defects in software programs can be rectified, and the programs
saved. In the information technology sector, it is common knowledge that there are
many badly written programs, with significant programming errors written into them;
hence it does not make economic sense to try to correct the programs; instead,
programmers simply abandon them and just start from scratch. Theres no telling if any
of these programs is unrectifiable, unless a qualified programmer reads the source
code.
And if indeed a qualified expert reviewed the source code, did he also determine
how much work would be needed to rectify the programs? And how much time and
money would be spent for that effort? Who would carry out the work? After the
rectification process, who would ascertain and how would it be ascertained that the
programs have indeed been properly rectified, and that they would work properly
thereafter? And of course, the most important question to ask: could the rectification be
done in time for the elections in 2004?
Clearly, none of the respondents bothered to think the matter through. Comelec
simply took the word of the BAC as gospel truth, without even bothering to inquire from
DOST whether it was true that the deficiencies noted could possibly be remedied by re-
programming the software. Apparently, Comelec did not care about the software, but
focused only on purchasing the machines.
What really adds to the Courts dismay is the admission made by Commissioner
Borra during the Oral Argument that the software currently being used by Comelec was
merely the demo version, inasmuch as the final version that would actually be used in
the elections was still being developed and had not yet been finalized.
It is not clear when the final version of the software would be ready for testing and
deployment. It seems to the Court that Comelec is just keeping its fingers crossed and
hoping the final product would work. Is there a Plan B in case it does not? Who
knows? But all these software programs are part and parcel of the bidding and the
Contract awarded to the Consortium. Why is it that the machines are already being
brought in and paid for, when there is as yet no way of knowing if the final version of the
software would be able to run them properly, as well as canvass and consolidate the
results in the manner required?
The counting machines, as well as the canvassing system, will never work
properly without the correct software programs. There is an old adage that is still valid
to this day: Garbage in, garbage out. No matter how powerful, advanced and
sophisticated the computers and the servers are, if the software being utilized is
defective or has been compromised, the results will be no better than garbage. And to
think that what is at stake here is the 2004 national elections -- the very basis of our
democratic life.
Correction of Defects?
To their Memorandum, public respondents proudly appended 19 Certifications
issued by DOST declaring that some 285 counting machines had been tested and had
passed the acceptance testing conducted by the Department on October 8-18,
2003. Among those tested were some machines that had failed previous tests, but had
undergone adjustments and thus passed re-testing.
Unfortunately, the Certifications from DOST fail to divulge in what manner and by
what standards or criteria the condition, performance and/or readiness of the machines
were re-evaluated and re-appraised and thereafter given the passing mark. Apart from
that fact, the remedial efforts of respondents were, not surprisingly, apparently focused
again on the machines -- the hardware. Nothing was said or done about the software --
the deficiencies as to detection and prevention of downloading and entering previously
downloaded data, as well as the capability to print an audit trail. No matter how many
times the machines were tested and re-tested, if nothing was done about the
programming defects and deficiencies, the same danger of massive electoral fraud
remains. As anyone who has a modicum of knowledge of computers would say, Thats
elementary!
And only last December 5, 2003, an Inq7.net news report quoted the Comelec chair
as saying that the new automated poll system would be used nationwide in May
2004, even as the software for the system remained unfinished. It also reported that a
certain Titus Manuel of the Philippine Computer Society, which was helping Comelec
test the hardware and software, said that the software for the counting still had to be
submitted on December 15, while the software for the canvassing was due in early
January.
Even as Comelec continues making payments for the ACMs, we keep asking
ourselves: who is going to ensure that the software would be tested and would work
properly?
At any rate, the re-testing of the machines and/or the 100 percent testing of all
machines (testing of every single unit) would not serve to eradicate the grave abuse of
discretion already committed by Comelec when it awarded the Contract on April 15,
2003, despite the obvious and admitted flaws in the bidding process, the failure of the
winning bidder to qualify, and the inability of the ACMs and the intended software to
meet the bid requirements and rules.
Comelecs Latest
Assurances Are
Unpersuasive
Even the latest pleadings filed by Comelec do not serve to allay our
apprehensions. They merely affirm and compound the serious violations of law and
gravely abusive acts it has committed. Let us examine them.
The Resolution issued by this Court on December 9, 2003 required respondents to
inform it as to the number of ACMs delivered and paid for, as well as the total payment
made to date for the purchase thereof. They were likewise instructed to submit a
certification from the DOST attesting to the number of ACMs tested, the number found
to be defective; and whether the reprogrammed software has been tested and found to
have complied with the requirements under Republic Act No. 8436.
[50]

In its Partial Compliance and Manifestation dated December 29, 2003, Comelec
informed the Court that 1,991 ACMs had already been delivered to the Commission as
of that date. It further certified that it had already paid the supplier the sum
of P849,167,697.41, which corresponded to 1,973 ACM units that had passed the
acceptance testing procedures conducted by the MIRDC-DOST
[51]
and which had
therefore been accepted by the poll body.
In the same submission, for the very first time, Comelec also disclosed to the Court
the following:
The Automated Counting and Canvassing Project involves not only the manufacturing of the
ACM hardware but also the development of three (3) types of software, which are intended for
use in the following:
1. Evaluation of Technical Bids
2. Testing and Acceptance Procedures
3. Election Day Use.
Purchase of the First Type of
Software Without Evaluation
In other words, the first type of software was to be developed solely for the purpose
of enabling the evaluation of the bidders technical bid. Comelec explained thus: In
addition to the presentation of the ACM hardware, the bidders were required to develop
a base software program that will enable the ACM to function properly. Since the
software program utilized during the evaluation of bids is not the actual software
program to be employed on election day, there being two (2) other types of software
program that will still have to be developed and thoroughly tested prior to actual election
day use, defects in the base software that can be readily corrected by reprogramming
are considered minor in nature, and may therefore be waived.
In short, Comelec claims that it evaluated the bids and made the decision to award
the Contract to the winning bidder partly on the basis of the operation of the ACMs
running a base software. That software was therefore nothing but a sample or demo
software, which would not be the actual one that would be used on election
day. Keeping in mind that the Contract involves the acquisition of not just the ACMs or
the hardware, but also the software that would run them, it is now even clearer that the
Contract was awarded without Comelec having seen, much less evaluated,
the final product -- the software that would finally be utilized come election day. (Not
even the near-final product, for that matter).
What then was the point of conducting the bidding, when the software that was the
subject of the Contract was still to be created and could conceivably undergo
innumerable changes before being considered as being in final form? And that is not
all!
No Explanation for Lapses
in the Second Type of Software
The second phase, allegedly involving the second type of software, is simply
denominated Testing and Acceptance Procedures. As best as we can construe,
Comelec is claiming that this second type of software is also to be developed and
delivered by the supplier in connection with the testing and acceptance phase of the
acquisition process. The previous pleadings, though -- including the DOST reports
submitted to this Court -- have not heretofore mentioned any statement, allegation or
representation to the effect that a particular set of software was to be developed and/or
delivered by the supplier in connection with the testing and acceptance of delivered
ACMs.
What the records do show is that the imported ACMs were subjected to the testing
and acceptance process conducted by the DOST. Since the initial batch delivered
included a high percentage of machines that had failed the tests, Comelec asked the
DOST to conduct a 100 percent testing; that is, to test every single one of the ACMs
delivered. Among the machines tested on October 8 to 18, 2003, were some units that
had failed previous tests but had subsequently been re-tested and had passed. To
repeat, however, until now, there has never been any mention of a second set or type of
software pertaining to the testing and acceptance process.
In any event, apart from making that misplaced and uncorroborated claim, Comelec
in the same submission also professes (in response to the concerns expressed by this
Court) thatthe reprogrammed software has been tested and found to have
complied with the requirements of RA 8436. It reasoned thus: Since the software
program is an inherent element in the automated counting system, the certification
issued by the MIRDC-DOST that one thousand nine hundred seventy-three (1,973)
units passed the acceptance test procedures is an official recognition by the MIRDC-
DOST that the software component of the automated election system, which has been
reprogrammed to comply with the provisions of Republic Act No. 8436 as prescribed in
the Ad Hoc Technical Evaluation Committees ACM Testing and Acceptance Manual,
has passed the MIRDC-DOST tests.
The facts do not support this sweeping statement of Comelec. A scrutiny of the
MIRDC-DOST letter dated December 15, 2003,
[52]
which it relied upon, does not justify
its grand conclusion. For claritys sake, we quote in full the letter-certification, as
follows:
15 December 2003
HON. RESURRECCION Z. BORRA
Commissioner-in-Charge
Phase II, Modernization Project
Commission on Elections
Intramuros, Manila
Attention: Atty. Jose M. Tolentino, Jr.
Project Director
Dear Commissioner Borra:
We are pleased to submit 11 DOST Test Certifications representing 11 lots and covering 158
units of automated counting machines (ACMs) that we have tested from 02-12 December 2003.
To date, we have tested all the 1,991 units of ACMs, broken down as follow: (sic)
1
st
batch - 30 units 4
th
batch - 438 units
2
nd
batch - 288 units 5
th
batch - 438 units
3
rd
batch - 414 units 6
th
batch - 383 units
It should be noted that a total of 18 units have failed the test. Out of these 18 units, only one (1)
unit has failed the retest.
Thank you and we hope you will find everything in order.
Very truly yours,
ROLANDO T. VILORIA, CESO III
Executive Director cum
Chairman, DOST-Technical Evaluation Committee
Even a cursory glance at the foregoing letter shows that it is completely bereft of
anything that would remotely support Comelecs contention that the software
component of the automated election system x x x has been reprogrammed to comply
with RA 8436, and has passed the MIRDC-DOST tests. There is no mention at all of
any software reprogramming. If the MIRDC-DOST had indeed undertaken the
supposed reprogramming and the process turned out to be successful, that agency
would have proudly trumpeted its singular achievement.
How Comelec came to believe that such reprogramming had been undertaken is
unclear. In any event, the Commission is not forthright and candid with the factual
details. If reprogramming has been done, who performed it and when? What exactly
did the process involve? How can we be assured that it was properly performed? Since
the facts attendant to the alleged reprogramming are still shrouded in mystery, the Court
cannot give any weight to Comelecs bare allegations.
The fact that a total of 1,973 of the machines has ultimately passed the MIRDC-
DOST tests does not by itself serve as an endorsement of the soundness of the
software program, much less as a proof that it has been reprogrammed. In the first
place, nothing on record shows that the tests and re-tests conducted on the machines
were intended to address the serious deficiencies noted earlier. As a matter of fact, the
MIRDC-DOST letter does not even indicate what kinds of tests or re-tests were
conducted, their exact nature and scope, and the specific objectives thereof.
[53]
The
absence of relevant supporting documents, combined with the utter vagueness of the
letter, certainly fails to inspire belief or to justify the expansive confidence displayed by
Comelec. In any event, it goes without saying that remedial measures such as the
alleged reprogramming cannot in any way mitigate the grave abuse of discretion
already committed as early as April 15, 2003.
Rationale of Public Bidding Negated
by the Third Type of Software
Respondent Comelec tries to assuage this Courts anxiety in these words: The
reprogrammed software that has already passed the requirements of Republic Act No.
8436 during the MIRDC-DOST testing and acceptance procedures will require further
customization since the following additional elements, among other things, will have to
be considered before the final software can be used on election day: 1. Final Certified
List of Candidates x x x 2. Project of Precincts x x x 3. Official Ballot Design and
Security Features x x x 4. Encryption, digital certificates and digital signatures x x
x. The certified list of candidates for national elective positions will be finalized on or
before 23 January 2004 while the final list of projects of precincts will be prepared also
on the same date. Once all the above elements are incorporated in the software
program, the Test Certification Group created by the Ad Hoc Technical Evaluation
Committee will conduct meticulous testing of the final software before the same can be
used on election day. In addition to the testing to be conducted by said Test
Certification Group, the Comelec will conduct mock elections in selected areas
nationwide not only for purposes of public information but also to further test the final
election day program. Public respondent Comelec, therefore, requests that it be given
up to 16 February 2004 to comply with this requirement.
The foregoing passage shows the imprudent approach adopted by Comelec in the
bidding and acquisition process. The Commission says that before the software can be
utilized on election day, it will require customization through addition of data -- like the
list of candidates, project of precincts, and so on. And inasmuch as such data will
become available only in January 2004 anyway, there is therefore no perceived need on
Comelecs part to rush the supplier into producing the final (or near-final) version of the
software before that time. In any case, Comelec argues that the software needed for
the electoral exercise can be continuously developed, tested, adjusted and perfected,
practically all the way up to election day, at the same time that the Commission is
undertaking all the other distinct and diverse activities pertinent to the elections.
Given such a frame of mind, it is no wonder that Comelec paid little attention to the
counting and canvassing software during the entire bidding process, which took place in
February-March 2003. Granted that the software was defective, could not detect and
prevent the re-use of previously downloaded data or produce the audit trail -- aside from
its other shortcomings -- nevertheless, all those deficiencies could still be corrected
down the road. At any rate, the software used for bidding purposes would not be the
same one that will be used on election day, so why pay any attention to its defects? Or
to the Comelecs own bidding rules for that matter?
Clearly, such jumbled ratiocinations completely negate the rationale underlying the
bidding process mandated by law.
At the very outset, the Court has explained that Comelec flagrantly violated the
public policy on public biddings (1) by allowing MPC/MPEI to participate in the bidding
even though it was not qualified to do so; and (2) by eventually awarding the Contract to
MPC/MPEI. Now, with the latest explanation given by Comelec, it is clear that the
Commission further desecrated the law on public bidding by permitting the winning
bidder to change and alter the subject of the Contract (the software), in effect allowing a
substantive amendment without public bidding.
This stance is contrary to settled jurisprudence requiring the strict application of
pertinent rules, regulations and guidelines for public bidding for the purpose of placing
each bidder, actual or potential, on the same footing. The essence of public bidding is,
after all, an opportunity for fair competition, and a fair basis for the precise comparison
of bids. In common parlance, public bidding aims to level the playing field. That
means each bidder must bid under the same conditions; and be subject to the same
guidelines, requirements and limitations, so that the best offer or lowest bid may be
determined, all other things being equal.
Thus, it is contrary to the very concept of public bidding to permit a variance
between the conditions under which bids are invited and those under which proposals
are submitted and approved; or, as in this case, the conditions under which the bid is
won and those under which the awarded Contract will be complied with. The
substantive amendment of the contract bidded out, without any public bidding --
after the bidding process had been concluded -- is violative of the public policy on
public biddings, as well as the spirit and intent of RA 8436. The whole point in going
through the public bidding exercise was completely lost. The very rationale of public
bidding was totally subverted by the Commission.
From another perspective, the Comelec approach also fails to make
sense. Granted that, before election day, the software would still have to be customized
to each precinct, municipality, city, district, and so on, there still was nothing at all to
prevent Comelec from requiring prospective suppliers/bidders to produce, at the very
start of the bidding process, the next-to-final versions of the software (the best
software the suppliers had) -- pre-tested and ready to be customized to the final list of
candidates and project of precincts, among others, and ready to be deployed
thereafter. The satisfaction of such requirement would probably have provided far
better bases for evaluation and selection, as between suppliers, than the so-called
demo software.
Respondents contend that the bidding suppliers counting machines were previously
used in at least one political exercise with no less than 20 million voters. If so, it stands
to reason that the software used in that past electoral exercise would probably still be
available and, in all likelihood, could have been adopted for use in this instance. Paying
for machines and software of that category (already tried and proven in actual elections
and ready to be adopted for use) would definitely make more sense than paying the
same hundreds of millions of pesos for demo software and empty promises of usable
programs in the future.
But there is still another gut-level reason why the approach taken by Comelec is
reprehensible. It rides on the perilous assumption that nothing would go wrong; and
that, come election day, the Commission and the supplier would have developed,
adjusted and re-programmed the software to the point where the automated system
could function as envisioned. But what if such optimistic projection does not
materialize? What if, despite all their herculean efforts, the software now being
hurriedly developed and tested for the automated system performs dismally and
inaccurately or, worse, is hacked and/or manipulated?
[54]
What then will we do with all
the machines and defective software already paid for in the amount of P849 million of
our tax money? Even more important, what will happen to our country in case of failure
of the automation?
The Court cannot grant the plea of Comelec that it be given until February 16, 2004
to be able to submit a certification relative to the additional elements of the software
that will be customized, because for us to do so would unnecessarily delay the
resolution of this case and would just give the poll body an unwarranted excuse to
postpone the 2004 elections. On the other hand, because such certification will not
cure the gravely abusive actions complained of by petitioners, it will be utterly useless.
Is this Court being overly pessimistic and perhaps even engaging in
speculation? Hardly. Rather, the Court holds that Comelec should not have gambled
on the unrealistic optimism that the suppliers software development efforts would turn
out well. The Commission should have adopted a much more prudent and judicious
approach to ensure the delivery of tried and tested software, and readied alternative
courses of action in case of failure. Considering that the nations future is at stake here,
it should have done no less.
Epilogue
Once again, the Court finds itself at the crossroads of our nations history. At stake
in this controversy is not just the business of a computer supplier, or a questionable
proclamation by Comelec of one or more public officials. Neither is it about whether this
country should switch from the manual to the automated system of counting and
canvassing votes. At its core is the ability and capacity of the Commission on Elections
to perform properly, legally and prudently its legal mandate to implement the transition
from manual to automated elections.
Unfortunately, Comelec has failed to measure up to this historic task. As stated at
the start of this Decision, Comelec has not merely gravely abused its discretion in
awarding the Contract for the automation of the counting and canvassing of the
ballots. It has also put at grave risk the holding of credible and peaceful elections by
shoddily accepting electronic hardware and software that admittedly failed to pass
legally mandated technical requirements. Inadequate as they are, the remedies it
proffers post facto do not cure the grave abuse of discretion it already committed (1) on
April 15, 2003, when it illegally made the award; and (2) sometime in May 2003 when
it executed the Contract for the purchase of defective machines and non-existent
software from a non-eligible bidder.
For these reasons, the Court finds it totally unacceptable and unconscionable to
place its imprimatur on this void and illegal transaction that seriously endangers the
breakdown of our electoral system. For this Court to cop-out and to close its eyes to
these illegal transactions, while convenient, would be to abandon its constitutional duty
of safeguarding public interest.
As a necessary consequence of such nullity and illegality, the purchase of the
machines and all appurtenances thereto including the still-to-be-produced (or in
Comelecs words, to be reprogrammed) software, as well as all the payments made
therefor, have no basis whatsoever in law. The public funds expended pursuant to the
void Resolution and Contract must therefore be recovered from the payees and/or from
the persons who made possible the illegal disbursements, without prejudice to possible
criminal prosecutions against them.
Furthermore, Comelec and its officials concerned must bear full responsibility for
the failed bidding and award, and held accountable for the electoral mess wrought by
their grave abuse of discretion in the performance of their functions. The State, of
course, is not bound by the mistakes and illegalities of its agents and servants.
True, our country needs to transcend our slow, manual and archaic electoral
process. But before it can do so, it must first have a diligent and competent electoral
agency that can properly and prudently implement a well-conceived automated election
system.
At bottom, before the country can hope to have a speedy and fraud-free automated
election, it must first be able to procure the proper computerized hardware and software
legally, based on a transparent and valid system of public bidding. As in any
democratic system, the ultimate goal of automating elections must be achieved by a
legal, valid and above-boardprocess of acquiring the necessary tools and skills
therefor. Though the Philippines needs an automated electoral process, it cannot
accept just any system shoved into its bosom through improper and illegal methods. As
the saying goes, the end never justifies the means. Penumbral contracting will not
produce enlightened results.
WHEREFORE, the Petition is GRANTED. The Court hereby
declares NULL and VOID Comelec Resolution No. 6074 awarding the contract for
Phase II of the CAES to Mega Pacific Consortium (MPC). Also declared null and void
is the subject Contract executed between Comelec and Mega Pacific eSolutions
(MPEI).
[55]
Comelec is further ORDERED to refrain from implementing any other
contract or agreement entered into with regard to this project.
Let a copy of this Decision be furnished the Office of the Ombudsman which shall
determine the criminal liability, if any, of the public officials (and conspiring private
individuals, if any) involved in the subject Resolution and Contract. Let the Office of the
Solicitor General also take measures to protect the government and vindicate public
interest from the ill effects of the illegal disbursements of public funds made by reason
of the void Resolution and Contract.
SO ORDERED.
Tolentino vs comelec
DISSENTING OPINION
PUNO, J .:
The case at bar transcends the political fortunes of respondent Senator Gregorio B.
Honasan. At issue is the right of the people to elect their representatives on the basis
and only on the basis of an informed judgment. The issue strikes at the heart of
democracy and representative government for without this right, the sovereignty of the
people is a mere chimera and the rule of the majority will be no more
than mobocracy. To clarify and sharpen the issue, 1 shall first unfurl the facts.
I. Facts
The facts are undisputed. In February 2001, a Senate seat for a term expiring on
June 30, 2004 was vacated with the appointment of then Senator Teofisto Guingona, Jr.
as Vice-President of the Philippines. The Senate adopted Resolution No. 84 certifying
the existence of a vacancy in the Senate and calling the Commission on Elections
(COMELEC) to fill up such vacancy through election to be held simultaneously with the
regular election on May 14, 2001, and the senatorial candidate garnering the thirteenth
(13th) highest number of votes shall serve only for the unexpired term of former Senator
Teofisto T. Guingona, Jr. In the deliberations of the Senate on the resolution, the body
agreed that the procedure it adopted for determining the winner in the special election
was for the guidance and implementation of the COMELEC. The COMELEC had no
discretion to alter the procedure.
Nobody filed a certificate of candidacy to fill the position of senator to serve the
unexpired three-year term in the special election. All the senatorial candidates filed the
certificates of candidacy for the twelve regular Senate seats to be vacated on June 30,
2001 with a six-year term expiring on June 30, 2007. COMELEC distributed nationwide
official documents such as the Voter Information Sheet, List of Candidates and Sample
Ballot. The List of Candidates did not indicate a separate list of candidates for the
special election. The Sample Ballot and the official ballots did not provide two
different categories of Senate seats to be voted, namely the twelve regular six-year term
seats and the single three-year term seat. Nor did the ballots provide a separate space
for the candidate to be voted in the special election and instead provided thirteen
spaces for thirteen senatorial seats.
Without any COMELEC resolution or notice on the time, place and manner of
conduct of the special election, the special election for senator was held on the
scheduled May 14, 2001 regular elections. A single canvass of votes for a single list of
senatorial candidates was done. On June 5, 2001, respondent COMELEC promulgated
COMELEC Resolution No. NBC01-005, the dispositive portion of which reads, viz:
NOW, THEREFORE, by virtue of the powers vested in it under the Constitution,
Omnibus Election Code and other election laws, the Commission on Elections
sitting En Banc as the National Board of Canvassers hereby proclaims the above-
named thirteen (13) candidates as the duly elected Senators of the Philippines in the
May 14, 2001 elections. Based on the Certificates of Canvass finally tabulated, the
first twelve (12) Senators shall serve for a term of six (6) years and the
thirteenth (13th) Senator shall serve the unexpired term of three (3) years of
Senator Teofisto T. Guingona, Jr., who was appointed Vice-President of the
Philippines pursuant to Section 9, Article VII of the Constitution, in relation to
Section 9, Article VI thereof, as implemented under Republic Act No. 6645.
(emphasis supplied)
On June 21, 2001, petitioners filed with the Court their petition for prohibition to stop
respondent COMELEC from proclaiming any senatorial candidate in the May 14, 2001
election as having been elected for the lone senate seat for a three-year term. Copies of
the petition were served on respondent COMELEC twice, first on June 20, 2001 by
registered mail, and second on June 21, 2001, by personal delivery of petitioner
Mojica. On June 26, 2001 the Court issued a Resolution requiring respondent
COMELEC to comment within ten days from notice. Even before filing its comment,
respondent COMELEC issued Resolution No. NBC-01-006 on July 20, 2001, the
dispositive portion of which reads, viz:
NOW, THEREFORE, by virtue of the powers vested in it under the Constitution,
Omnibus Election Code and other election laws, the Commission on Elections sitting
as the National Board of Canvassers hereby DECLARES official and final the above
ranking of the proclaimed 13 Senators of the Philippines in relation to NBC
Resolution No. 01-005 promulgated June 5, 2001. Resolution No. NBC-01-006
indicates the following ranking of the 13 Senators with the corresponding votes they
garnered as of June 20, 2001:
1. De Castro, Noli L. - 16,237,386
2. Flavier, Juan M. - 11,735,897
3. Osmea, Sergio II R. - 11,593,389
4. Drilon, Franklin M. - 11,301,700
5. Arroyo, Joker P. - 11,262,402
6. Magsaysay, Ramon Jr. B. - 11,250,677
7. Villar, Manuel Jr. B. - 11,187,375
8. Pangilinan, Francis N. - 10,971,896
9. Angara, Edgardo J. - 10,805,177
10. Lacson, Panfilo M. - 10,535,559
11. Ejercito-Estrada, Luisa P. - 10,524,130
12. Recto, Ralph - 10,498,940
13. Honasan, Gregorio - 10,454,527
On the day of its promulgation, respondent COMELEC forwarded Resolution No.
NBC-01-006 to the President of the Senate. On July 23, 2001, the thirteen senators,
inclusive of respondents Honasan and Recto, took their oaths of office before the
Senate President.
With the turn of events after the filing of the petition on June 20, 2001, the Court
ordered petitioners on March 5, 2002 and September 17, 2002 to amend their
petition. In their amended petition, petitioners assailed the manner by which the special
election was conducted citing as precedents the 1951 and 1955 special senatorial
elections for a two-year term which were held simultaneously with the regular general
elections for senators with six year terms, viz:
(a) A vacancy in the Senate was created by the election of Senator Fernando Lopez as
Vice-President in the 1949 elections. A special election was held in November 1951
to elect his successor to the vacated Senate position for a term to expire on 30
December 1953. Said special election was held simultaneously with the regular
election of 1951. A separate space in the official ballot was provided for
Senatorial candidates for the two year term; moreover, the candidates for the
single Senate term for two years filed certificates of candidacy separate and
distinct from those certificates of candidacy filed by the group of Senatorial
candidates for the six year term.
(...the votes for the twenty (20) candidates who filed certificates of candidacy for
the eight Senate seats with six year terms were tallied and canvassed separately
from the votes for the five candidates who filed certificates of candidacy for the
single Senate seat with a two year term...)
xxx xxx xxx
(b) Again, a vacancy was created in the Senate by the election of then Senator Carlos
P. Garcia to the Vice Presidency in the 1953 presidential elections. A special election
was held in November 1955 to elect his successor to the vacated Senatorial position
for a two year term expiring on 30 December 1957.
Said special election for one senator to fill the vacancy left by the Honorable Carlos
Garcia was held in November 1955 simultaneously with the regular election for eight
Senate seats with a six year term. Here, separate spaces were provided for in the
official ballot for the single Senate seat for the two year term as differentiated
from the eight Senate seats with six year terms. The results as recorded by
Senate official files show that votes for the candidates for the Senate seat with a
two-year term were separately tallied from the votes for the candidates for the
eight Senate seats with six-year term...
[1]
(emphases supplied)
Petitioners thus pray that the Court declare the following:
(a) that no special election was conducted by respondent COMELEC for the
single Senate seat with a three year term in the 14 May 2001 election.
(b) null and void respondent COMELECs Resolutions No. NBC01-005 dated 5
June 2001 and NBC01-006 dated 20 July 2001 for having been promulgated
without any legal authority at all insofar as said resolutions proclaim the
Senatorial candidate who obtained the thirteenth highest number of votes
canvassed during the 14 May 2001 election as a duly elected Senator.
[2]

Respondents filed their respective comments averring the following procedural
flaws: (1) the Court has no jurisdiction over the petition for quo warranto; (2) the petition
is moot; and (3) the petitioners have no standing to litigate. On the merits, they all
defend the validity of the special election on the ground that the COMELEC had
discretion to determine the manner by which the special election should be conducted
and that the electorate was aware of the method the COMELEC had adopted.
Moreover, they dismiss the deviations from the election laws with respect to the filing of
certificates of candidacy for the special elections and the failure to provide in the official
ballot a space for the special election vote separate from the twelve spaces for the
regular senatorial election votes as inconsequential. They claim that these laws are
merely directory after the election.
II. Issues
The issues for resolution are procedural and substantive. I shall limit my humble
opinion to the substantive issue of whether a special election for the single Senate seat
with a three-year term was validly held simultaneous with the general elections on May
14, 2001.
III. Laws on the Calling of Special Elections
Section 9, Article VI of the 1987 Constitution provides for the filling of a vacancy in
the Senate and House of Representatives, viz:
Sec. 9. In case of vacancy in the Senate or in the House of Representatives, a special
election may be called to fill such vacancy in the manner prescribed by law, but the
Senator or Member of the House of Representatives thus elected shall serve only for
the unexpired term.
Congress passed R.A. No. 6645, An Act Prescribing the Manner of Filling a
Vacancy in the Congress of the Philippines, to implement this constitutional provision.
The law provides,viz:
SECTION 1. In case a vacancy arises in the Senate at least eighteen (18) months or in
the House of Representatives at least one (1) year before the next regular election for
Members of Congress, the Commission on Elections, upon receipt of a resolution of
the Senate or the House of Representatives, as the case may be, certifying to the
existence of such vacancy and calling for a special election, shall hold a special
election to fill such vacancy. If the Congress is in recess, an official communication
on the existence of the vacancy and call for a special election by the President of the
Senate or by the Speaker of the House of Representatives, as the case may be, shall be
sufficient for such purpose. The Senator or Member of the House of Representatives
thus elected shall serve only for the unexpired term.
SECTION 2. The Commission on Elections shall fix the date of the special election,
which shall not be earlier than forty-five (45) days nor later than ninety (90) days
from the date of such resolution or communication, stating among other things, the
office or offices to be voted for: Provided, however, That if within the said period a
general election is scheduled to be held, the special election shall be held
simultaneously with such general election.
SECTION 3. The Commission on Elections shall send copies of the resolution, in
number sufficient for due distribution and publication, to the Provincial or City
Treasurer of each province or city concerned, who in turn shall publish it in their
respective localities by posting at least three copies thereof in as many
conspicuous places in each of their election precincts, and a copy in each of the
polling places and public markets, and in the municipal buildings. (emphasis
supplied)
R.A. No. 6645 was amended in 1991 by R.A. No. 7166 which provides in Section
4, viz:
SECTION 4. Postponement, Failure of Election and Special Election. - The
postponement, declaration of failure of election and the calling of special elections as
provided in Sections 5, 6, and 7 of the Omnibus Election Code shall be decided by
the Commission sitting en banc by a majority vote of its members...
In case a permanent vacancy shall occur in the Senate or House of Representatives at
least one (1) year before the expiration of the term, the Commission shall call and
hold a special election to fill the vacancy not earlier than sixty (60) days nor longer
than ninety (90) days after the occurrence of the vacancy. However, in case of
such vacancy in the Senate, the special election shall be held simultaneously with
the next succeeding regular election. (emphases supplied)
IV. Democracy and Republicanism
The shortest distance between two points is a straight line. In this case of first
impression, however, the distance between existing jurisprudence and the resolution of
the issue presented to the Court cannot be negotiated through a straight and direct line
of reasoning. Rather, it is necessary to journey through a meandering path and unearth
the root principles of democracy, republicanism, elections, suffrage, and freedom of
information and discourse in an open society. As a first step in this indispensable
journey, we should traverse the democratic and republican landscape to appreciate the
importance of informed judgment in elections.
A. Evolution of Democracy from Plato to Locke
to Jefferson and Contemporary United States of America
In the ancient days, democracy was dismissed by thoughtful
thinkers. Plato deprecated democracy as rule by the masses. He warned that if all the
people were allowed to rule, those of low quality would dominate the state by mere
numerical superiority. He feared that the more numerous masses would govern with
meanness and bring about a tyranny of the majority. Plato predicted that democracies
would be short-lived as the mob would inevitably surrender its power to a single tyrant,
and put an end to popular government. Less jaundiced than Plato was Aristotles view
towards democracy. Aristotle agreed that under certain conditions, the will of the many
could be equal to or even wiser than the judgment of the few. When the many governed
for the good of all, Aristotle admitted that democracy is a good form of government. But
still and all, Aristotle preferred a rule of the upper class as against the rule of the lower
class. He believed that the upper class could best govern for they represent people of
the greatest refinement and quality.
In the Middle Ages, Europe plunged when the Roman Empire perished. Europe re-
emerged from this catastrophe largely through reliance on the scientific method which
ultimately ushered the Industrial Revolution. Material success became the engine which
drove the people to search for solutions to their social, political and economic problems.
Using the scythe of science and reason, the thinkers of the time entertained an
exaggerated notion of individualism. They bannered the idea that all people were
equal; no one had a greater right to rule than another. Dynastical monarchy was
taboo. As all were essentially equal, no one enjoyed the moral right to govern
another without the consent of the governed. The people therefore were the source
of legitimate legal and political authority. This theory of popular sovereignty revived
an interest in democracy in the seventeenth century. The refinements of the grant of
power by the people to the government led to the social contract theory: that is, the
social contract is the act of people exercising their sovereignty and creating a
government to which they consent.
[3]

Among the great political philosophers who spurred the evolution of democratic
thought was John Locke (1632-1704). In 1688, the English revolted against the
Catholic tyranny of James II, causing him to flee to France. This Glorious
Revolution, called such because it was almost bloodless, put to rest the long struggle
between King and Parliament in England. The revolution reshaped the English
government and ultimately brought about democracy in England.
John Locke provided the philosophical phalanx to the Glorious Revolution. For
this purpose, he wrote his Second Treatise of Government, his work with the most
political impact. In his monumental treatise, Locke asserted that the basis of political
society is a contract whereby individuals consent to be bound by the laws of a common
authority known as civil government. The objective of this social contract is the
protection of the individuals natural rights to life, liberty and property which are
inviolable and enjoyed by them in the state of nature before the formation of all social
and political arrangements.
[4]
Locke thus argues that legitimate political power amounts
to a form of trust, a contract among members of society anchored on their own
consent, and seeks to preserve their lives, liberty and property. This trust or social
contract makes government legitimate and clearly defines the functions of government
as concerned, above all, with the preservation of the rights of the governed.
Even then, Locke believed that the people should be governed by a parliament
elected by citizens who owned property. Although he argued that the people were
sovereign, he submitted that they should not rule directly. Members of parliament
represent their constituents and should vote as their constituents wanted. The
governments sole reason for being was to serve the individual by protecting his rights
and liberties. Although Lockes ideas were liberal, they fell short of the ideals of
democracy. He spoke of a middle-class revolution at a time when the British
government was controlled by the aristocracy. While he claimed that all people were
equally possessed of natural rights, he advocated that political power be devolved
only to embrace the middle class by giving Parliament, which was controlled through
the House of Commons, the right to limit the monarchical power. He denied political
power to the poor; they were bereft of the right to elect members of Parliament.
Locke influenced Thomas Jefferson, the eminent statesman and philosopher of
the (American) revolution and of the first constitutional order which free men were
permitted to establish.
[5]
But although Jefferson espoused Lockes version of the social
contract and natural law, he had respect for the common people and participatory
government. Jefferson believed that the people, including the ordinary folk, were
the only competent guardians of their own liberties, and should thus control their
government. Discussing the role of the people in a republic, Jefferson wrote to Madison
from France in 1787 that they are the only sure reliance for the preservation of our
liberties.
[6]

The wave of liberalism from Europe notwithstanding, a much more
conservative, less democratic, and more paternalistic system of government was
originally adopted in the United States. The nations founders created a government in
which power was much more centralized than it had been under the Articles of
Confederation and they severely restricted popular control over the
government.
[7]
Many of the delegates to the Constitutional Convention of 1787 adhered
to Alexander Hamiltons view that democracy was little more than legitimized mob
rule, a constant threat to personal security, liberty and property. Thus, the framers
sought to establish a constitutional republic, in which public policy would be made by
elected representatives but individual rights were protected from the tyranny of transient
majorities. With its several elitist elements and many limitations on majority rule, the
framers Constitution had undemocratic strands.
The next two centuries, however, saw the further democratization of the
federal Constitution.
[8]
The Bill of Rights was added to the American Constitution and
since its passage, America had gone through a series of liberalizing eras that slowly
relaxed the restraints imposed on the people by the new political order. The changing
social and economic milieu mothered by industrialization required political
democratization.
[9]
In 1787, property qualifications for voting existed and suffrage was
granted only to white males. At the onset of Jacksonion democracy in the 1830s,
property requirements quickly diminished and virtually became a thing of the past by the
time of the Civil War. In 1870, the Fifteenth Amendment theoretically extended the
franchise to African-Americans, although it took another century of struggle for the
Amendment to become a reality. In 1920, the Nineteenth Amendment removed sex as
aqualification for voting. The Progressive Era also saw the Seventeenth Amendment of
the Constitution to provide for direct election of United States senators
[10]
and established
procedures for initiative, referendum and recall (otherwise known as direct democracy)
in many states.
[11]
Poll taxes were abolished as prerequisites for voting in federal
elections through the Twenty-Fourth Amendment in 1964. Finally, the voting age was
lowered to eighteen with the ratification of the Twenty-Sixth Amendment in 1971.
[12]

B. Constitutional History of Democracy
and Republicanism in the Philippines
The Malolos Constitution was promulgated on January 21, 1899 by the short-lived
Revolutionary Government headed by Emilio Aguinaldo after the Declaration of
Independence from Spain on June 12, 1898. Article 4 of the Constitution declared the
Philippines a Republic, viz:
Art. 4. The government of the Republic is popular,representative, alternative, and
responsible and is exercised by three distinct powers, which are denominated
legislative, executive and judicial...
Shortly after the promulgation of the Malolos Constitution, the Philippines fell under
American rule. The Americans adopted the policy of gradually increasing the autonomy
of the Filipinos before granting their independence.
[13]
In 1934, the U.S. Congress
passed the Tydings-McDuffie Law xxx the last of the constitutional landmarks studding
the period of constitutional development of the Filipino people under the American
regime before the final grant of Philippine independence.
[14]
Under this law, the
American government authorized the Filipino people to draft a constitution in 1934 with
the requirement that the constitution formulated and drafted shall be republican in
form. In conformity with this requirement,
[15]
Article II, Section 1 of the 1935 Philippine
Constitution was adopted, viz:
Sec. 1. The Philippines is a republican state. Sovereignty resides in the people and
all government authority emanates from them.
The delegates to the Constitutional Convention understood this form of government to
be that defined by James Madison, viz:
We may define a republic to be a government which derives all its power directly
or indirectly from the great body of the people; and is administered by persons
holding offices during pleasure, for a limited period, or during good behavior. It is
essential to such a government that it be derived from the great body of the society,
not from an inconsiderable proportion, or a favored class of it. It is sufficient for
such government that the person administering it be appointed either directly or
indirectly, by the people; and that they hold their appointments by either of the
tenures just specified.
[16]
(emphases supplied)
The 1973 Constitution adopted verbatim Article II, Section 1 of the 1935
Constitution. So did the 1987 Constitution. The delegates to the 1986 Constitutional
Commission well understood the meaning of a republican government. They adopted
the explanation by Jose P. Laurel in his book, Bread and Freedom, The Essentials of
Popular Government, viz:
When we refer to popular government or republican government or representative
government, we refer to some system of popular representation where the powers of
government are entrusted to those representatives chosen directly or indirectly
by the people in their sovereign capacity.
[17]
(emphasis supplied)
An outstanding feature of the 1987 Constitution is the expansion of the
democratic space giving the people greater power to exercise their
sovereignty. Thus, under the 1987 Constitution, the people can directly exercise
their sovereign authority through the following modes, namely: (1) elections; (2)
plebiscite; (3) initiative; (4) recall; and (5) referendum. Through elections, the people
choose the representatives to whom they will entrust the exercise of powers of
government.
[18]
In a plebiscite, the people ratify any amendment to or revision of the
Constitution and may introduce amendments to the constitution.
[19]
Indeed, the
Constitution mandates Congress to provide for a system of initiative and referendum,
and the exceptions therefrom, whereby the people can directly propose and enact laws
or approve or reject any law or part thereof passed by the Congress or local legislative
body. . . It also directs Congress to enact a local government code which shall provide
for effective mechanisms of recall, initiative, and referendum.
[20]
Pursuant to this
mandate, Congress enacted the Local Government Code of 1991 which defines local
initiative as the legal process whereby the registered voters of a local government unit
may directly propose, enact, or amend any ordinance through an election called for the
purpose. Recall is a method of removing a local official from office before the expiration
of his term because of loss of confidence.
[21]
In a referendum, the people can approve or
reject a law or an issue of national importance.
[22]
Section 126 of the Local Government
Code of 1991 defines a local referendum as the legal process whereby the registered
voters of the local government units may approve, amend or reject any ordinance
enacted by the sanggunian.
These Constitutional provisions on recall, initiative, and referendum institutionalized
the peoples might made palpable in the 1986 People Power Revolution.
[23]
To capture
the spirit of People Power and to make it a principle upon which Philippine society may
be founded, the Constitutional Commission enunciated as a first principle in the
Declaration of Principles and State Policies under Section 1, Article II of the 1987
Constitution that the Philippines is not only a republican but also a democratic state.
The following excerpts from the Records of the Constitutional Commission show the
intent of the Commissioners in emphasizing democratic in Section 1, Article II, in light
of the provisions of the Constitution on initiative, recall, referendum and peoples
organizations:
MR. SUAREZ. . . . May I call attention to Section 1. I wonder who among the
members of the committee would like to clarify this question regarding the use of the
word democratic in addition to the word republican. Can the honorable members
of the committee give us the reason or reasons for introducing this additional
expression? Would the committee not be satisfied with the use of the word
republican? What prompted it to include the word democratic?
xxx xxx xxx
MR. NOLLEDO. Madam President, I think as a lawyer, the Commissioner knows that
one of the manifestations of republicanism is the existence of the Bill of Rights and
periodic elections, which already indicates that we are a democratic state. Therefore,
the addition of democratic is what we call pardonable redundancy the purpose
being to emphasize that our country is republican and democratic at the same time. . .
In the 1935 and 1973 Constitutions, democratic does not appear. I hope the
Commissioner has no objection to that word.
MR. SUAREZ. No, I would not die for that. If it is redundant in character but it is
for emphasis of the peoples rights, I would have no objection. I am only trying to
clarify the matter.
[24]
(emphasis supplied)
In other portions of the Records, Commissioner Nolledo explains the significance of
the word democratic, viz:
MR. NOLLEDO. I am putting the word democratic because of the provisions that
we are now adopting which are covering consultations with the people. For example,
we have provisions on recall, initiative, the right of the people even to participate in
lawmaking and other instances that recognize the validity of interference by the
people through peoples organizations . . .
[25]

xxx xxx xxx
MR. OPLE. The Committee added the word democratic to republican, and,
therefore, the first sentence states: The Philippines is a republican and democratic
state.
May I know from the committee the reason for adding the word democratic to
republican? The constitutional framers of the 1935 and 1973 Constitutions were
content with republican. Was this done merely lor the sake of emphasis?
MR. NOLLEDO. Madam President, that question has been asked several times, but
being the proponent of this amendment, I would like the Commissioner to know that
democratic was added because of the need to emphasize people power and the
many provisions in the Constitution that we have approved related to recall, peoples
organizations, initiative and the like, which recognize the participation of the people
in policy-making in certain circumstances.
MR. OPLE. I thank the Commissioner. That is a very clear answer and I think it does
meet a need. . .
xxx xxx xxx
MR. NOLLEDO. According to Commissioner Rosario Braid, democracy here is
understood as participatory democracy.
[26]
(emphasis supplied)
The following exchange between Commissioners Sarmiento and Azcuna is of the
same import:
MR. SARMIENTO. When we speak of republican democratic state, are we referring
to representative democracy?
MR. AZCUNA. That is right.
MR. SARMIENTO. So, why do we not retain the old formulation under the 1973 and
1935 Constitutions which used the words republican state because republican
state would refer to a democratic state where people choose their representatives?
MR. AZCUNA. We wanted to emphasize the participation of the people in
government.
MR. SARMIENTO. But even in the concept republican state, we are stressing the
participation of the people. . . So the word republican will suffice to cover popular
representation.
MR. AZCUNA. Yes, the Commissioner is right. However, the committee felt that in
view of the introduction of the aspects of direct democracy such as initiative,
referendum or recall, it was necessary to emphasize the democratic portion of
republicanism, of representative democracy as well. So, we want to add the word
democratic to emphasize that in this new Constitution there are instances where the
people would act directly, and not through their representatives.
[27]
(emphasis supplied)
V. Elections and the Right to Vote
A. Theory
The electoral process is one of the linchpins of a democratic and republican
framework because it is through the act of voting that government by consent is
secured.
[28]
Through the ballot, people express their will on the defining issues of the day
and they are able to choose their leaders
[29]
in accordance with the fundamental principle
of representative democracy that the people should elect whom they please to govern
them.
[30]
Voting has an important instrumental value in preserving the viability of
constitutional democracy.
[31]
It has traditionally been taken as a prime indicator of
democratic participation.
[32]

The right to vote or of suffrage is an important political right appertaining to
citizenship. Each individual qualified to vote is a particle of popular
sovereignty.
[33]
In People v. Corral,
[34]
we held that (t)he modern conception of suffrage
is that voting is a function of government. The right to vote is not a natural right but it is
a right created by law. Suffrage is a privilege granted by the State to such persons as
are most likely to exercise it for the public good. The existence of the right of
suffrage is a threshold for the preservation and enjoyment of all other rights that it
ought to be considered as one of the most sacred parts of the
constitution.
[35]
In Geronimo v. Ramos, et al.,
[36]
we held that the right is among the most
important and sacred of the freedoms inherent in a democratic society and one which
must be most vigilantly guarded if a people desires to maintain through self-government
for themselves and their posterity a genuinely functioning democracy in which the
individual may, in accordance with law, have a voice in the form of his government and
in the choice of the people who will run that government for him.
[37]
The U.S. Supreme
Court recognized in Yick Wo v. Hopkins
[38]
that voting is a fundamental political right,
because [it is] preservative of all rights. In Wesberry v. Sanders,
[39]
the U.S.
Supreme Court held that no right is more precious in a free country than that of
having a voice in the election of those who make the laws, under which, as good
citizens, we must live. Other rights, even the most basic, are illusory if the right to
vote is undermined. Voting makes government more responsive to community and
individual needs and desires. Especially for those who feel disempowered and
marginalized or that government is not responsive to them, meaningful access to the
ballot box can be one of the few counterbalances in their arsenal.
[40]

Thus, elections are substantially regulated for them to be fair and honest, for order
rather than chaos to accompany the democratic processes.
[41]
This Court has
consistently ruled from as early as the oft-cited 1914 case of Gardiner v. Romulo
[42]
that
the purpose of election laws is to safeguard the will of the people, the purity of elections
being one of the most important and fundamental requisites of popular government. We
have consistently made it clear that we frown upon any interpretation of the law or the
rules that would hinder in any way not only the free and intelligent casting of the
votes in an election but also the correct ascertainment of the results.
[43]
To preserve
the purity of elections, comprehensive and sometimes complex election codes are
enacted, each provision of which - whether it governs the registration and qualifications
of voters, the selection and eligibility of candidates, or the voting process itself -
inevitably affects the individuals right to vote.
[44]
As the right to vote in a free and
unimpaired manner is preservative of other basic civil and political rights, Chief Justice
Warren, speaking for the U.S. Supreme Court in Reynolds v. Sims
[45]
cautioned
that any alleged infringement of the right of citizens to vote must be carefully and
meticulously scrutinized.It was to promote free, orderly and honest elections and to
preserve the sanctity of the right to vote that the Commission on Elections was
created.
[46]
The 1987 Constitution mandates the COMELEC to ensure free, orderly,
honest, peaceful, and credible elections.
[47]

B. History of Suffrage in the Philippines
In primitive times, the choice of who will govern the people was not based on
democratic principles. Even then, birth or strength was not the only basis for choosing
the chief of the tribe. When an old chief has failed his office or committed wrong or has
aged and can no longer function, the members of the tribe could replace him and
choose another leader.
[48]
Among the Muslims, a council or ruma bechara chooses the
sultan. An old sultan may appoint his successor, but his decision is not absolute. Among
the criteria for choosing a sultan were age, blood, wealth, fidelity to Islamic faith and
exemplary character or personality.
[49]
In times of crises, the community may choose its
leader voluntarily, irrespective of social status. By consensus of the community, a serf
or slave may be voted the chief on account of his ability.
As far back as the Spanish regime, the Filipinos did not have a general right of
suffrage.
[50]
It was only in the Malolos Constitution of 1899 that the right of suffrage was
recognized;
[51]
it was a by-product of the Filipinos struggle against the Spanish colonial
government and an offshoot of Western liberal ideas on civil government and individual
rights.
[52]
The life of the Malolos Constitution was, however, cut short by the onset of the
American regime in the Philippines. But the right of suffrage was reiterated in the
Philippine Bill of 1902.
[53]
The first general elections were held in 1907
[54]
under the first
Philippine Election Law, Aci No. 1582, which took effect on January 15, 1907. This law
was elitist and discriminatory against women. The right of suffrage was carried into the
Jones Law of 1916.
[55]
Whereas previously, the right was granted only by the Philippine
Legislature and thus subject to its control, the 1935 Constitution elevated suffrage to a
constitutional right.
[56]
It also provided for a plebiscite on the issue of whether the right of
suffrage should be extended to women. On April 30, 1937, the plebiscite was held and
the people voted affirmatively. In the 1973 Constitution,
[57]
suffrage was recognized not
only as a right, but was imposed as a duty to broaden the electoral base and make
democracy a reality through increased popular participation in government. The voting
age was lowered, the literacy requirement abolished, and absentee voting was
legalized.
[58]
The 1987 Constitution likewise enshrines the right of suffrage in Article V,
but unlike the 1973 Constitution, it is now no longer imposed as a duty.
[59]
The 1948
Universal Declaration of Human Rights
[60]
and the 1976 Covenant on Civil and Political
Rights
[61]
also protect the right of suffrage.
VI. Voter Information:
Prerequisite to a Meaningful Vole in a Genuinely Free,
Orderly and Honest Elections in a Working Democracy
A. Democracy, information and discourse on public matters
1. U.S. jurisdiction
For the right of suffrage to have a value, the electorate must be informed about
public matters so that when they speak through the ballot, the knowledgeable voice and
not the ignorant noise of the majority would prevail. Jefferson admonished Americans
to be informed rather than enslaved by ignorance, saying that (i)f a nation expects to
be ignorant and free in a state of civilization, it expects what never was and never
will be.
[62]
Jefferson emphasized the importance of discourse in a democracy, viz:
In every country where man is free to think and to speak, differences of opinion arise
from difference of perception, and the imperfection of reason; but these differences
when permitted, as in this happy country, to purify themselves by discussion, are but
as passing clouds overspreading our land transiently and leaving our horizon more
bright and serene.
[63]

Other noted political philosophers like John Stuart Mill conceived of the marketplace
of ideas as a necessary means of testing the validity of ideas, viz:
(N)o ones opinions deserve the name of knowledge, except so far as he has either had
forced upon him by others, or gone through of himself, the same mental process
which could have been required of him in carrying on an active controversy with
opponents.
[64]

In the same vein, political philosopher Alexander Meiklejohn, in his article Free
Speech Is An Absolute, stressed that, (s)elf-government can exist only insofar as the
voters acquire the intelligence, integrity, sensitivity, and generous devotion to the
general welfare that, in theory, casting a ballot is assumed to express.
[65]
To vote
intelligently, citizens need information about their government.
[66]
Even during the diaper
days of U.S. democracy, the Framers of the U.S. Constitution postulated that self-
governing people should be well-informed about the workings of government to make
intelligent political choices. In discussing the First Amendment, James Madison said:
The right of freely examining public characters and measures, and of free
communication thereon, is the only effectual guardian of every other right....
[67]
Thus, the
United States, a representative democracy, has generally subscribed to the notion that
public information and participation are requirements for a representative democracy
where the electorate make informed choices. The First Amendment to the U.S.
Constitution, which establishes freedom of the press and speech supports this
proposition. The First Amendments jealous protection of free expression is largely
based on the ideas that free and open debate will generate truth and that only an
informed electorate can create an effective democracy.
[68]

The First Amendment reflects the Framers belief that public participation in
government is inherently positive. An informed citizenry is a prerequisite to
meaningful participation in government. Thus, the U.S. Congress embraced this
principle more concretely with the passage of the Freedom of Information Act of 1966
(FO1A).
[69]
The law enhanced public access to and understanding of the operation of
federal agencies with respect to both the information held by them and the formulation
of public policy.
[70]
In the leading case on the FOIA,Environmental Protection Agency
v. Mink,
[71]
Justice Douglas, in his dissent, emphasized that the philosophy of the statute
is the citizens right to be informed about what their government is up
to.
[72]
In Department of Air Force v. Rose,
[73]
the U.S. Supreme Court acknowledged
that the basic purpose of the FOIA is to open agency action to the light of public
scrutiny. These rulings were reiterated in the 1994 case of Department of Defense, et
al. v. Federal Labor Relations Authority, et al.
[74]
Be that as it may, the U.S. Supreme
Court characterized this freedom of information as a statutory and not a constitutional
right in Houchins v. KQED, Inc., et al.,
[75]
viz: there is no constitutional right to have
access to particular government information, or to require openness from the
bureaucracy. . . The Constitution itself is neither a Freedom of Information Act nor an
Official Secrets Act.
[76]
Neither the courts nor Congress has recognized an affirmative
constitutional obligation to disclose information concerning governmental affairs; the
U.S. Constitution itself contains no language from which the duty could be readily
inferred.
[77]
Nevertheless, the U.S. federal government, the fifty states and the District of
Columbia have shown their commitment to public access to government-held
information. All have statutes that allow varying degrees of access to government
records.
[78]

While the right of access to government information or the right to know is
characterized as a statutory right, the right to receive information
[79]
was first identified
by the U.S. Supreme Court as a constitutional right in the 1936 case of Grosjean v.
American Press Company.
[80]
The Court also stated that the First Amendment protects
the natural right of members of an organized society, united for their common good, to
impart and acquire information about their common interests. Citing Judge Cooley, the
Court held that free and general discussion of public matters is essential to
prepare the people for an intelligent exercise of their rights as citizens.
[81]
The
Court also noted that an informed public opinion is the most potent of all restraints upon
misgovernment. Many consider Virginia State Board of Pharmacy v. Virginia
Citizens Consumer Council
[82]
the seminal right to receive case.
[83]
In this 1976
decision, the Court struck down a Virginia statute forbidding pharmacists from
advertising the prices of prescription drugs. Writing for the majority, Justice Blackmun
held that the free flow of information about commercial matters was necessary to
ensure informed public decision-making. He reasoned that the protection of the First
Amendment extends not only to the speaker, but to the recipient of the communication.
Although the case dealt with commercial speech, the majority opinion made it clear
that the constitutional protection for receipt of information would apply with even
more force when more directly related to self-government and public policy.
[84]

In 1982, the U.S. Supreme Court highlighted the connection between self-
government and the right to receive information in Board of Education v. Pico.
[85]
This
case involved a school board-ordered removal of books from secondary school libraries
after the board classified the book as anti-American, anti-Christian, anti-Semitic, and
just plain filthy.
[86]
Justice Brennan, writing for a three-justice plurality, emphasized the
First Amendments role in assuring widespread dissemination of ideas and information.
Citing Griswold v. Connecticut,
[87]
the Court held that (t)he State may not, consistently
with the spirit of the First Amendment, contract the spectrum of available knowledge.
The Court noted that the right to receive ideas is a necessary predicate to
the recipients meaningful exercise of his own rights of speech, press, and
political freedom. It then cited Madisons admonition that, (a) popular
Government, without popular information, or the means of acquiring it, is but a
Prologue to a Farce or a Tragedy; or, perhaps both. Knowledge will forever
govern ignorance: And a people who mean to be their own Governors, must arm
themselves with the power which knowledge gives.
[88]

The U.S. Supreme Court has reiterated, in various contexts, the idea that the
Constitution protects the right to receive information and ideas.
[89]
Kleindienst v.
Mandel
[90]
acknowledged a First Amendment right to receive information but deferring to
Congress plenary power to exclude aliens. Lamont v. Postmaster
General
[91]
invalidated a statutory requirement that foreign mailings of communist
political propaganda be delivered only upon request by the addressee. Martin v. City
of Struthers
[92]
invalidated a municipal ordinance forbidding door-to-door distribution of
handbills as violative if the First Amendment rights of both the recipients and the
distributors.
[93]

Whether the right to know is based on a statutory right provided by the FOIA or a
constitutional right covered by the First Amendment, the underlying premise is that an
informed people is necessary for a sensible exercise of the freedom of speech,
which in turn, is necessary to a meaningful exercise of the right to vote in a
working democracy. In 1927, Justice Louis Brandeis gave the principle behind the
First Amendment its classic formulation, viz:
Those who won our independence believed that the final end of the state was to make
men free to develop their faculties, and that in its government the deliberative
forces should prevail over the arbitrary. They valued liberty both as an end and as a
means. They believed liberty to be the secret of happiness and courage to be the
secret of liberty. They believed that freedom to think as you will and to speak as
you think are means indispensable to the discovery and spread of political
truth; that without free speech and assembly discussion would be futile; that with
them, discussion affords ordinarily adequate protection against the dissemination of
noxious doctrine; that the greatest menace to freedom is an inert people; that public
discussion is a political duty; and that this should be a fundamental principle of
the American government. They recognized the risks to which all human
institutions are subject. But they knew that order cannot be secured merely through
fear of punishment for its infraction; that it is hazardous to discourage thought, hope
and imagination; that fear breeds repression; that repression breeds hate; that hate
menaces stable government; that the path of safety lies in the opportunity to
discuss freely supposed grievances and proposed remedies; and that the fitting
remedy for evil counsels is good ones. Believing in the power of reason as applied
through public discussion, they eschewed silence coerced by law-the argument of
force in its worst form. Recognizing the occasional tyrannies of governing majorities,
they amended the Constitution so that free speech and assembly should be
guaranteed.
[94]

The U.S. Supreme Court also held in Stromberg v. California
[95]
that the First
Amendment provides the opportunity for free political discussion to the end that
government may be responsive to the will of the people and that changes may be
obtained by lawful means...
[96]
The Amendment is the repository of...self-governing
powers
[97]
as it provides a peaceful means for political and social change through public
discussion. In Mills v. State of Alabama,
[98]
it ruled that there may be differences about
interpretations of the First Amendment, but there is practically universal agreement that
a major purpose of the Amendment was to protect the free discussion of
governmental affairs. This of course includes discussions of candidates,
structures and forms of government, the manner in which government is
operated or should be operated, all such matters relating to political
processes.
[99]
Justice William J. Brennan summarized the principle succinctly in his
opinion for the Court in Garrison v. Louisiana, viz: ...speech concerning public affairs is
more than self-expression; it is the essence of self-government. (emphasis supplied)
[100]

2. Philippine jurisdiction
The electorates right to information on public matters occupies a higher legal
tier in the Philippines compared to the United States. While the right to information
in U.S. jurisdiction is merely a statutory right, it enjoys constitutional status in
Philippine jurisdiction. The 1987 Constitution not only enlarged the democratic space
with provisions on the electorates direct exercise of sovereignty, but also highlighted
the right of the people to information on matters of public interest as a predicate
to good governance and a working democracy. The Bill of Rights sanctifies the right
of the people to information under Section 7, Article III of the 1987 Constitution, viz:
Sec. 7. The right of the people to information on matters of public concern shall be
recognized. Access to official records, and to documents, and papers pertaining to
official acts, transactions, or decisions, as well as to government research data used as
basis for policy development, shall be afforded the citizen, subject to such limitations
as may be provided by law. (emphasis supplied)
This provision on the right to information sans the phrase as well as to government
research data made its maiden appearance in the Bill of Rights of the 1973
Constitution. The original draft of the provision presented to the 1971 Constitutional
Convention merely said that access to official records and the right to information shall
be afforded the citizens as may be provided by law. Delegate De la Serna pointed out,
however, that the provision did not grant a self-executory right to citizens. He thus
proposed the rewording of the provision to grant the right but subject to statutory
limitations.
[101]
The 1973 Constitution thus provided in Section 6, Article IV, viz:
Sec. 6. The right of the people to information on matters of public concern shall be
recognized. Access to official records, and to documents and papers pertaining to
official acts, transactions, or decisions, shall be afforded the citizen subject to such
limitations as may be provided by law.
The change in phraseology was important as in the pre-1973 case of Subido v.
Ozaeta,
[102]
this Court held that freedom of information or freedom to obtain information
for publication is not guaranteed by the constitution. In that case, the issue before the
Court was whether the press and the public had a constitutional right to demand the
examination of the public land records. The Court ruled in the negative but held that the
press had a statutory right to examine the records of the Register of Deeds because the
interest of the press was real and adequate.
As worded in the 1973 and 1987 Constitution, the right to information is self-
executory. It is a public right where the real parties in interest are the people. Thus,
every citizen has standing to challenge any violation of the right and may seek its
enforcement.
[103]
The right to information, free speech and press and of assembly and
petition and association which are all enshrined in the Bill of Rights are cognate rights
for they all commonly rest on the premise that ultimately it is an informed and critical
public opinion which alone can protect and uphold the values of democratic
government.
[104]

In splendid symmetry
[105]
with the right to information in the Bill of Rights are other
provisions of the 1987 Constitution highlighting the principle of transparency in
government.Included among the State Policies under Article II of the 1987 Constitution
is the following provision, viz:
Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and
implements a policy of full public disclosure of all its transactions involving public
interest. (emphasis supplied)
Related to the above provision is Section 21 of Article XI, National Economy and
Patrimony, which provides, viz:
Sec. 21. Foreign loans may be incurred in accordance with law and the regulation of
the monetary authority. Information on foreign laws obtained or guaranteed by
the Government shall be made available to the public. (emphasis supplied)
The indispensability of access to information involving public interest and government
transparency in Philippine democracy is clearly recognized in the deliberations of the
1987 Constitutional Commission, viz:
MR. OPLE. Mr. Presiding Officer, this amendment is proposed jointly by
Commissioners Ople, Rama, Trenas, Romulo, Regalado and Rosario Braid. It reads as
follows: SECTION 24. THE STATE SHALL ADOPT AND IMPLEMENT A
POLICY OF FULL PUBLIC DISCLOSURE OF ALL ITS TRANSACTIONS
SUBJECT TO REASONABLE SAFEGUARDS ON NATIONAL INTEREST AS
MAY BE PROVIDED BY LAW.
xxx xxx xxx
In the United States, President Aquino has made much of the point that the
government should be open and accessible to the public. This amendment is by way
of providing an umbrella statement in the Declaration of Principles for all these
safeguards for an open and honest government distributed all over the draft
Constitution. It establishes a concrete, ethical principle for the conduct of public
affairs in a genuinely open democracy, with the peoples right to know as the
centerpiece.
[106]
(emphasis supplied)
Commissioners Bernas and Rama made the following observations on the principle of
government transparency and the publics right to information:
FR. BERNAS. Just one observation, Mr. Presiding Officer. I want to comment that
Section 6 (referring to Section 7, Article III on the right to information) talks about the
right of the people to information, and corresponding to every right is a duty. In this
particular case, corresponding to this right of the people is precisely the duty of
the State to make available whatever information there may be needed that is of
public concern. Section 6 is very broadly stated so that it covers anything that is of
public concern. It would seem also that the advantage of Section 6 is that it challenges
citizens to be active in seeking information rather than being dependent on whatever
the State may release to them.
xxx xxx xxx
MR. RAMA. There is a difference between the provisions under the Declaration of
Principles and the provision under the Bill of Rights. The basic difference is that the
Bill of Rights contemplates coalition(sic) (collision?) between the rights of the
citizens and the State. Therefore, it is the right of the citizen to demand
information. While under the Declaration of Principles, the State must have a
policy, even without being demanded, by the citizens, without being sued by the
citizen, to disclose information and transactions. So there is a basic difference here
because of the very nature of the Bill of Rights and the nature of the Declaration of
Principles.
[107]
(emphases supplied)
The importance of information in a democratic framework is also recognized in
Section 24, Article II, viz:
Sec. 24. The State recognizes the vital role of communication and information in
nation-building. (emphasis supplied).
Section 10 of Article XVI, General Provisions is a related provision. It states, viz:
Sec. 10. The State shall provide the policy environment for the full development of
Filipino capability and the emergence of communication structures suitable to the
needs and aspirations of the nation and the balanced flow of information into,
out of, and across the country, in accordance with a policy that respects the freedom
of speech and of the press. (emphasis supplied)
The sponsorship speech of Commissioner Braid expounds on the rationale of these
provisions on information and communication, viz:
MS. ROSARIO BRAID. We cannot talk of the functions of communication unless we
have a philosophy of communication, unless we have a vision of society. Here we
have a preferred vision where opportunities are provided for participation by as many
people, where there is unity even in cultural diversity, for there is freedom to have
options in a pluralistic society. Communication and information provide the
leverage for power. They enable the people to act, to make decisions, to share
consciousness in the mobilization of the nation.
[108]
(emphasis supplied)
In Valmonte v. Belmonte,
[109]
the Court had occasion to rule on the right to
information of a lawyer, members of the media and plain citizens who sought from the
Government Service Insurance System a list of the names of the Batasang Pambansa
members belonging to the UNIDO and PDP-Laban who were able to secure clean loans
immediately before the February 7 election thru the intercession/marginal note of the
then First Lady Imelda Marcos.
[110]
In upholding the petitioners right, the Court explained
the rationale of the right to information in a democracy, viz:
This is not the first time that the Court is confronted wth a controversy directly
involving the constitutional right to information. In Taada v. Tuvera, G.R. No.
63915, April 2 , 1985, 136 SCRA 27(involving the need for adequate notice to the
public of the various laws which are to regulate the actions and conduct of
citizens) and in the recent case of Legaspi v. Civil Service Commission, G.R. No.
72119, May 29, 1987, 150 SCRA 530 (involving the concern of citizens to ensure
that government positions requiring civil service eligibility are occupied only by
persons who are eligibles), the Court upheld the peoples constitutional right to
be informed of matters of public interest and ordered the government agencies
concerned to act as prayed for by the petitioners.
xxx xxx xxx
An informed citizenry with access to the diverse currents in political, moral and
artistic thought and data relative to them, and the free exchange of ideas and
discussion of issues thereon is vital to the democratic government envisioned
under our Constitution. The cornerstone of this republican system of government is
delegation of power by the people to the State. In this system, governmental agencies
and institutions operate within the limits of the authority conferred by the people.
Denied access to information on the inner workings of government, the citizenry can
become prey to the whims and caprices of those to whom the power had been
delegated...
xxx xxx xxx
...The right of access to information ensures that these freedoms are not rendered
nugatory by the governments monopolizing pertinent information. For an essential
element of these freedoms is to keep open in continuing dialogue or process of
communication between the government, and the people. It is in the interest of the
State that the channels for free political discussion be maintained to the end that the
government may perceive and be responsive to the peoples will. Yet, this open
dialogue can be effective only to the extent that the citizenry is informed and thus
able to formulate its will intelligently. Only when the participants in a discussion
are aware of the issues and have access to information relating thereto can such
bear fruit.
The right to information is an essential premise of a meaningful right to speech and
expression. But this is not to say that the right to information is merely an adjunct of
and therefore restricted in application by the exercise of the freedoms of speech and of
the press. Far from it. The right to information goes hand-in-hand with the
constitutional policies of full public disclosure (footnote omitted) and honesty in the
public service (footnote omitted). It is meant to enhance the widening role of the
citizenry in governmental decision-making as well as in checking abuse in
government.
[111]
(emphases supplied)
The Court made a similar ruling in Gonzales v. Narvasa
[112]
which involved the
petitioners request addressed to respondent Executive Secretary Ronaldo B. Zamora
for the names of the executive officials holding multiple positions in government, copies
of their appointments, and a list of the recipients of luxury vehicles seized by the Bureau
of Customs and turned over to Malacaang.
[113]
The respondent was ordered to furnish
the petitioner the information requested. The Court held, viz:
Under both the 1973 (footnote omitted) and 1987 Constitution, this (the right to
information) is a self-executory provision which can be invoked by any citizen before
the courts...
Elaborating on the significance of the right to information, the Court said in Baldoza
v. Dimaano (71 SCRA 14 [1976]...) that [t]he incorporation of this right in the
Constitution is a recognition of the fundamental role of free exchange of
information in a democracy. There can be no realistic perception by the public of
the nations problems, nor a meaningful democratic decision-making if they are
denied access to information of general interest. Information is needed to enable
the members of society to cope with the exigencies of the times.
[114]
(emphases
supplied)
The importance of an informed citizenry in a working democracy was again
emphasized in Chavez v. Public Estates Authority and Amari Coastal Bay
Development Corporation
[115]
where we held, viz:
The State policy of full transparency in all transactions involving public interest
reinforces the peoples right to information on matters of public concern.
xxx xxx xxx
These twin provisions (on right to information under Section 7, Article III and the
policy of full public disclosure under Section 28, Article II) of the Constitution seek to
promote transparency in policy-making and in the operations of the government, as
well as provide the people sufficient information to exercise effectively other
constitutional rights. These twin provisions are essential to the exercise of freedom of
expression. If the government does not disclose its official acts, transactions and
decisions to citizens, whatever citizens may say, even if expressed without any
restraint, will be speculative and amount to nothing. These twin provisions are also
essential to hold public officials at all times x x x accountable to the people,
(footnote omitted) for unless citizens have the proper information, they cannot hold
public officials accountable for anything. Armed with the right information,
citizens can participate in public discussions leading to the formulation of
government policies and their effective implementation. An informed citizenry is
essential to the existence and proper functioning of any democracy.
[116]
(emphases
supplied)
B. Elections and the voters right to information on the elections
1. U.S. Jurisdiction
An informed citizenrys opinions and preferences have the most impact and are
most clearly expressed in elections which lie at the foundation of a representative
democracy. The electorates true will, however, can only be intelligently expressed if
they are well informed about the time, place, manner of conduct of the elections and the
candidates therein. Without this information, democracy will be a mere shibboleth for
voters will not be able to express their true will through the ballot.
In Duquette v. Merrill,
[117]
which the ponencia cites by reference to 26 American
Jurisprudence 2d 292,
[118]
a vacancy in the office of Country Treasurer in York County
occurred on July 24, 1944 upon the death of the incumbent Maynard A. Hobbs. The
vacancy was filled in accordance with the law providing that the governor may appoint a
resident of the county who shall be treasurer until the 1st day of January following the
next biennial election, at which said election a treasurer shall be chosen for the
remainder of the term, if any. The next biennial election was held on September 11,
1944. In the June 1944 primary election (prior to the death of Hobbs) where
nominations of candidates for the upcoming biennial elections were made, there was no
nomination for the office of County Treasurer as Hobbes term was yet to expire on
January 1947. Neither was a special primary election ordered by proclamation of the
Governor after Hobbes death. Nor were other legal modes of nominating candidates
such as through nomination of a political party, convention of delegates or appropriate
caucus resorted to. Consequently, in the official ballot of the September 11, 1944
election, there was no provision made for the selection of a County Treasurer to fill the
vacancy for the unexpired term. The name of the office did not appear on the ballot.
Petitioner Duquette, however, claims that he was elected County Treasurer in the
special election because in the City of Biddeford, the largest city in York County, 1,309
voters either wrote in the title of the office and his name thereunder, or used a sticker
of the same import and voted for him. At the September 11, 1944 biennial election,
there were approximately 22,000 ballots cast, but none included the name of the
petitioner except for the 1,309 in Biddeford. In holding that the special election was void,
the Maine Supreme Judicial Court made the following pronouncements, the first
paragraph of which was cited by the ponencia in the case at bar, viz:
Although there is not unanimity of judicial opinion as to the requirement of official
notice, if the vacancy is to be filled at the time of a general election, yet it appears to
be almost universally held that if the great body of the electors are misled by the
want of such notice and are instead led to believe that no such election is in fact
to be held, an attempted choice by a small percentage of the voters is void. Wilson
v. Brown, 109 Ky 229, 139 Ky 397, 58 SW 595; Wooton v. Wheeler, 149 Ky 62, 147
SW 914; Secord v. Foutch, 44 Mich 89, 6 NW 110; Bolton v. Good, 41 NJL 296
(other citations omitted).
Notice to the electors that a vacancy exists and that an election is to be held to fill
it for the unexpired term, is essential to give validity to the meeting of an
electoral body to discharge that particular duty, and is also an essential and
characteristic element of a popular election. Public policy requires that it should be
given in such form as to reach the body of the electorate. Here there had been no
nominations to fill the vacancy, either by the holding of a special primary
election, or by nomination by county political conventions or party committees.
The designation of the office to be filled was not upon the official ballot. As before
noted, except for the vacancy, it would have no place there, as the term of office of the
incumbent, if living, would not expire until January 1, 1947.
[119]
(emphases supplied)
As early as the 1897 case of People ex rel. Dix v. Kerwin,
[120]
the requirement of
notice in an election has been recognized, viz:
... We are not prepared to hold that this statute (requiring the giving of notice) is,
under all circumstances and at all times, so far mandatory that a failure to observe its
requirements will defeat an election otherwise regularly holden. There are many cases
which hold that elections regularly held and persons regularly voted for on
nominations made where there has been failure to observe some specific statutory
requirement will not thereby be necessarily defeated and the direction may, because of
the excusing circumstances, be held directory rather than mandatory. We do not
believe the circumstances of the present case, as they are now exhibited, bring it all
within this rule. The theory of elections is that there shall be due notice given to
the voters, and that they must be advised either by a direct notice published by
the clerk, as provided by statute, or by proceedings taken by the voters and the
people generally in such a way as that it may be fairly inferred that it was
generally and thoroughly well understood that a particular office was to be filled
at the election, so that the voters should act understandingly and intelligently in
casting their ballots.
xxx xxx xxx
Since there was no notice published according to the statute, we may not assume that
the nomination was regularly made, or that the voters were duly notified that the
office was to be filled at that general election, nine days afterwards. It has been
generally held that some notice, regular in its form, and pursuant to the
requirements of law, must be given as a safeguard to popular elections, that the
people may be informed for what officers they are to vote. Of course, it might
easily be true, as has already been suggested, that, if nominations had been made
for an office, certificates regularly filed, and tickets regularly printed, even
though the clerk had failed to publish his notice, there would be no presumption
that the body of the voters were uninformed as to their rights and as to the
positions which were to be filled. People v. Porter, 6 Cal. 26; Secord v. Foutch, 44
Mich 89, 6 N.W. 110; Adsit v. Osmun, 84 Mich. 420, 48 N.W. 31; Allen v. Glynn, 17
Colo. 338, 29 Pac. 670; Stephens v. People, 89 111. 337.
[121]
(emphases supplied)
Similarly, in Griffith v. Mercer County Court, et al.,
[122]
it was held, viz:
There is a clear distinction between the case of a vacancy which is to be filled at a
special election to be held at a time and place to be appointed by some officer or
tribunal, authorized by statute to call it, anda case where the statute itself provides
for filling a vacancy at the next general election after it occurs. In such case
nearly all the authorities hold that if the body of electors do in fact know the
vacancy exists, and candidates are regularly nominated by the various political
parties to fill it, and the candidates receive most of the votes cast, such election is
valid, even though no notice thereof was published in a manner provided by the
statute. It would be hypertechnical and unreasonable to hold that a failure to comply
literally with the statute in such case would avoid the election.
[123]
(emphasis supplied)
In Duquette, Kerwin and Griffith, as in a great majority of cases on the state level,
the mere fact that the election to fill a vacancy occasioned by death, resignation,
removal, or the like is held at the time of a general election in accordance with a
constitutional or statutory provision, is not regarded as sufficient in itself to validate
the election if no notice of the election was given; it has been held that in such a
case, it must be shown that a sufficient part of the electors have actual notice that
the vacancy is to be filled. The fact that a great percentage of voters cast their
votes despite the failure of giving proper notice of the elections appears to be the
most decisive single factor to hold that sufficient actual notice was
given.
[124]
These doctrines were reiterated in Lisle, et al. v. C.L. Schooler
[125]
where it
was held that mere allegation that many voters were informed that a special election to
fill a vacancy was being held was unsatisfactory proof of sufficient notice.
2. Philippine jurisdiction
In our jurisdiction, it is also the rule that the exercise of the right of suffrage should
be an enlightened one, hence, based on relevant facts, data and information. It is for
this reason that the choice of representatives in a democracy cannot be based on
lottery or any form of chance. The choice must be based on enlightened judgment
for democracy cannot endure the rule and reign of ignorance. This principle was
stressed by the Court in Tolentino v. Commission on Elections.
[126]
The issue before
the Court was whether the Constitutional Convention of 1971 had the power to call for a
plebiscite for the ratification by the people of a partial constitutional amendment. The
amendment was the proposal to lower the voting age to 18 but with the caveat that
(t)his partial amendment, which refers only to age qualification for the exercise of
suffrage shall be without prejudice to other amendments that will be proposed in the
future by the 1971 Constitutional Convention on other portions of the amended Section
or on other portions of the entire Constitution. The Court ruled in the negative,
emphasizing the necessity for the voter to be afforded sufficient time and
information to appraise the amendment, viz:
. . .No one knows what changes in the fundamental principles of the constitution the
Convention will be minded to approve. To be more specific, we do not have any
means of foreseeing whether the right to vote would be of any significant value at all.
Who can say whether or not later on the Convention may decide to provide for
varying types of voters for each level of the political units it may divide the country
into. The root of the difficulty in other words, lies in that the Convention is precisely
on the verge of introducing substantial changes, if not radical ones, in almost every
part and aspect of the existing social and political order enshrined in the present
Constitution. How can a voter in the proposed plebiscite intelligently determine
the effect of the reduction of the voting age upon the different institutions which
the Convention may establish and of which presently he is not given any idea?
We are certain no one can deny that in order that a plebiscite for the ratification
of an amendment to the Constitution may be validly held, it must provide the
voter not only sufficient time but ample basis for an intelligent appraisal of the
nature of the amendment per se as well as its relation to the other parts of the
Constitution with which it has to form a harmonious whole. In the present state of
things, where the Convention has hardly started considering the merits of hundreds, if
not thousands, of proposals to amend the existing Constitution, to present to the
people any single proposal or a few of them cannot comply with this
requirement.
[127]
(emphasis supplied)
The need for the voter to be informed about matters which have a bearing on his
vote was again emphasized by the Court in UNIDO v. Commission on
Elections.
[128]
This case involved the amendments to the 1973 Constitution proposed by
the Batasang Pambansa in 1981. The Court reiterated that the more people are
adequately informed about the proposed amendments, their exact meaning,
implications and nuances, the better. We held, viz:
To begin with, we cannot agree with the restrictive literal interpretation the Solicitor
General would want to give to the free, orderly and honest elections clause of
Section 5, Article X1I-C above-quoted. Government Counsel posits that the said
clause refers exclusively to the manner in which the elections are conducted, that is to
say, with the manner in which the voters are supposed to be allowed to vote. Perhaps,
such a theory may hold insofar as ordinary elections of officials are concerned. But
the Court views the provision as applicable also to plebiscites, particularly one
relative to constitutional amendments. Be it borne in mind that it has been one of
the most steadfast rulings of this Court in connection with such plebiscites that it
is indispensable that they be properly characterized to be fair submission - by
which is meant that the voters must of necessity have had adequate opportunity,
in the light of conventional wisdom, to cast their votes with sufficient
understanding of what they are voting on. We are of the firm conviction that the
charters reference to honest elections connotes fair submission in a plebiscite.
(emphasis supplied)
Similarly, the Court ruled in Sanidad v. COMELEC
[129]
that plebiscite issues are
matters of public concern and importance. The peoples right to be informed and to be
able to freely and intelligently make a decision would be better served by access to an
unabridged discussion of the issues, including the forum.
It cannot be overemphasized that an informed electorate is necessary for a
truly free, fair and intelligent election. The voting age was lowered from 21 years to
18 years because the youth of 18 to 21 years did not differ in political
maturity,
[130]
implying that political maturity or the capacity to discern political information
is necessary for the exercise of suffrage. It is for this obvious reason that minors and the
insane are not allowed to vote. Likewise, the literacy test for the right to vote was
abolished because as explained by the Committee on Suffrage and Electoral Reforms
of the 1971 Constitutional Convention, the requirement to read and write was written
into our constitution at a time when the only medium of information was the printed word
and even the public meetings were not as large and successful because of the absence
of amplifying equipment. It is a fact that today the vast majority of the population learn
about national matters much more from the audio-visual media, namely, radio and
television, and public meetings have become much more effective since the advent of
amplifying equipment. Again, the necessity of information relevant to an election is
highlighted. Similarly, in the 1986 Constitutional Commission, Commissioner Bernas, in
justifying enfranchisement of the illiterates, spoke of their access to information relevant
to elections, viz:
If we look at...the communication situation in the Philippines now, the means of
communication that has the farthest reach is AM radio. People get their information
not from reading newspapers but from AM radio - farmers while plowing, and
vendors while selling things listen to the radio. Without knowing how to read and
write, they are adequately informed about many things happening in the country.
[131]

Several election cases, albeit not involving an issue similar to the case at bar, affirm
the necessity of an informed electorate in holding free, intelligent and clean
elections. In Blo Umpar Adiong v. Commission on Elections
[132]
where this Court
nullified a portion of a COMELEC Resolution prohibiting the posting of candidates
decals and stickers on mobile places and limiting their location to authorized posting
areas, we held, viz:
We have adopted the principle that debate on public issues should be uninhibited,
robust, and wide open and that it may well include vehement, caustic and sometimes
unpleasantly sharp attacks on government and public officials. (New York Times Co.
v. Sullivan, 376 U.S. 254, 11 L.Ed. 686 [1964]...) Too many restrictions will deny to
people the robust, uninhibited, and wide open debate, the generating of interest
essential if our elections will truly be free, clean and honest.
We have also ruled that the preferred freedom of expression calls all the more for the
utmost respect when what may be curtailed is the dissemination of information to
make more meaningful the equally vital right of suffrage. (Mutuc v. Commission
on Elections, 36 SCRA 228 [1970]).
xxx xxx xxx
When faced with border line situations where freedom to speak by a candidate or
party and freedom to know on the part of the electorate are invoked against actions
intended for maintaining clean and free elections, the police, local officials and
COMELEC should lean in favor of freedom. For in the ultimate analysis, the freedom
of the citizen and the States power to regulate are not antagonistic. There can be no
free and honest elections if in the efforts to maintain them, the freedom to speak
and the right to know are unduly curtailed.
xxx xxx xxx
...we have to consider the fact that in the posting of decals and stickers on cars and
other moving vehicles, the candidate needs the consent of the owner of the vehicle. In
such a case, the prohibition would not only deprive the owner who consents to such
posting of the decals and stickers the use of his property but more important, in the
process, it would deprive the citizen of his right to free speech and information:
Freedom to distribute information to every citizen wherever he desires to receive
it is so clearly vital to the preservation of a free society that, putting aside
reasonable police and health regulations of time and manner of distribution, it must be
fully preserved. (Martin v. City of Struthers, Ohio, 319 U.S. 141; 87 L. ed. 1313
[1943]).
[133]

To facilitate the peoples right to information on election matters, this Court,
in Telecommunications and Broadcast Attorneys of the Philippines, Inc., et al. v.
COMELEC
[134]
upheld the validity of COMELECs procurement of print space and airtime
for allocation to candidates, viz:
With the prohibition on media advertising by candidates themselves, the COMELEC
Time and COMELEC Space are about the only means through which candidates can
advertise their qualifications and programs of government. More than merely
depriving candidates of time for their ads, the failure of broadcast stations to
provide airtime unless paid by the government would clearly deprive the people
of their right to know. Art. III, 7 of the Constitution provides that the right of
the people to information on matters of public concern shall be
recognized...
[135]
(emphasis supplied)
The importance of the peoples acquisition of information can be gleaned
from several provisions of the Constitution under Article IX (C), The Commission
on Elections.Section 4 provides that the COMELEC is given the power to supervise or
regulate the enjoyment or utilization of all franchises or permits for the operation of
transportation and other public utilities, media of communication or information, all
grants, special privileges or concession granted by the Government... Such supervision
or regulation shall aim to ensure equal opportunity, time, and space and the right to
reply, including reasonable, equal rates therefor, for public information campaigns and
forums among candidates in connection with the objective of holding free, orderly,
honest, peaceful and credible elections. Section 6 provides that, (a) free and open
party system shall be allowed to evolve according to the free choice of the people.
Section 2(5) of the same article requires political parties, organizations and coalitions to
present their platform or program of government before these can be registered. In the
robust and wide open debate of the electorate, these programs of government are
important matters for discussion.
The deliberations of the Constitutional Commission on whether voting of
Congressmen should be by district or province also evince a clear concern for intelligent
voting, viz:
SR. TAN. Mr. Presiding Officer, I think one of the drawbacks of our political system,
especially in the campaign, is that many of us vote by personality rather than by issue.
So I am inclined to believe that in the elections by district, that would be lessened
because we get to know the persons running more intimately. So we know their
motivation, their excesses, their weaknesses and there would be less chance for the
people to vote by personality. I was wondering whether the Commission shares the
same observation.
MR. DAVIDE. Mr. Presiding Officer, if it would be by province, the vote would no
longer be personalities but more on issues, because the relationship is not really very
personal. Whereas, if it would be by district, the vote on personality would be most
impressive and dominant.
SR. TAN. I cannot quite believe that. It would be like a superstar running around.
MR. DAVIDE. For instance, we have a district consisting of two municipalities. The
vote would be more on personalities. It is a question of attachment; you are the
godson or the sponsor of a baptism, like that. But if you will be voted by province, its
your merit that will be counted by all others outside your own area. In short, the more
capable you are, the more chance you have of winning provincewide.
[136]

Several provisions of our election laws also manifest a clear intent to facilitate
the voters acquisition of information pertaining to elections to the end that their
vote would truly reflect their will. Section 52(j) of Article VII of B.P. Blg. 881 or the
Omnibus Election Code gives the COMELEC the following power and duty:
(j) Carry out a continuing and systematic campaign through newspapers of general
circulation, radios and other media forms to educate the public and fully inform the
electorate about election laws, procedures, decisions, and other matters relative to
the work and duties of the Commission and the necessity of clean, free, orderly and
honest electoral processes. (Sec. 185(k), 1978 EC)
(k) Enlist non-partisan groups or organizations of citizens from the civic, youth,
professional, educational, business or labor sectors known for their probity,
impartiality and integrity...Such groups or organizations...shall perform the following
specific functions and duties:
A. Before Election Day:
1. Undertake an information campaign on salient features of this Code and help
in the dissemination of the orders, decisions and resolutions of the Commission
relative to the forthcoming election.(emphasis supplied)
Section 87 of Article X of B.P. Blg. 881 also provides, viz: Section 87. xxx
Public Forum. - The Commission shall encourage non-political, non-partisan private
or civic organizations to initiate and hold in every city and municipality, public for at
which all registered candidates for the same office may simultaneously and personally
participate to present, explain, and/or debate on their campaign platforms and
programs and other like issues... (emphasis supplied)
Section 93 of the same Article provides, viz:
Section 93. Comelec information bulletin. - The Commission shall cause the printing,
and supervise the dissemination of bulletins to be known as Comelec Bulletin which
shall be of such size as to adequately contain the picture, bio-data and program of
government of every candidate. Said bulletin shall be disseminated to the voters
or displayed in such places as to give due prominence thereto. (emphasis supplied)
Of the same import is Section 25 of R.A. No. 8436, An Act Authorizing the
Commission on Elections to Use an Automated Election System in the May 11, 1998
Elections and Subsequent Electoral Exercises which provides, viz:
Section 25. Voters Education. - The Commission together with and in support of
accredited citizens arms shall cany out a continuing and systematic campaign though
newspapers of general circulation, radio and other media forms, as well as through
seminars, symposia, fora and other nontraditional means to educate the public and
fully inform the electorate about the automated election system and inculcate values
on honest, peaceful and orderly elections. (emphasis supplied)
Similarly, R.A. No. 9006, An Act to Enhance the Holding of Free, Orderly, Honest,
Peaceful and Credible Elections through Fair Election Practices, approved a few
months before the May 2001 elections or on February 12, 2001 provides in Section
6.4, viz:
Sec. 6.4. xxx xxx xxx
In all instances, the COMELEC shall supervise the use and employment of press,
radio and television facilities insofar as the placement of political advertisements is
concerned to ensure that candidates are given equal opportunities under equal
circumstances to make known their qualifications and their stand on public
issues within the limits set forth in the Omnibus Election Code and Republic Act No.
7166 on election spending. (emphasis supplied)
The Omnibus Election Code also provides for procedures and requirements that
make the election process clear and orderly to avoid voter confusion. Article IX of the
Code provides,viz:
Section 73. Certificate of candidacy.- No person shall be eligible for any elective
public office unless he files a sworn certificate of candidacy within the period fixed
herein.
xxx xxx xxx
No person shall be eligible for more than one office to be filled in the same
election, and if he files his certificate of candidacy for more than one office, he shall
not be eligible for any of them...
xxx xxx xxx
Certificates of Candidacy; Certified List of Candidates. -
...
...the Commission shall cause to be printed certified lists of candidates containing
the names of all registered candidates for each office to be voted for in each
province, city or municipality immediately followed by the nickname or stage name
of each candidate duly registered in his certificate of candidacy and his political
affiliation, if any. Said list shall be posted inside each voting booth during the
voting period.
xxx xxx xxx
The names of all registered candidates immediately followed by the nickname or
stage name shall also be printed in the election returns and tally sheets (R.A. No.
6646, Sec. 4)
Section. 74. Contents of certificate of candidacy. The certificate of candidacy shall
state that the person filing it is announcing his candidacy for the office stated
therein and that he is eligible for said office;...
Article XVI, Section 181, also provides, viz:
Section 181. Official ballots. -
xxx xxx xxx
(b) The official ballot shall also contain the names of all the officers to be voted for in
the election, allowing opposite the name of each office, sufficient space or spaces
with horizontal lines where the voter may write the name or names of individual
candidates voted for by him.
In the case of special elections, the need for notice and information is
unmistakable under Section 7 of the Omnibus Election Code of the Philippines, as
amended by R.A. No. 7166, which provides, viz:
Sec. 7. Call for special election. - In case a permanent vacancy shall occur in the
Senate or House of Representatives at least one (1) year before the expiration of the
term, the Commission shall call and hold a special election to fill the vacancy not
earlier than sixty (60) days nor longer than ninety (90) after the occurrence of the
vacancy. However, in case of such vacancy in the Senate, the special election shall be
held simultaneously with the succeeding regular election. (R.A. No. 7166, Sec. 4)
The postponement, declaration of failure of election and the calling of special
elections as provided in Sections 5, 6, and 7 of the Omnibus Election Code shall be
decided by the Commission sitting en bancby a majority vote of its members. The
causes for the declaration of a failure of election may occur before or after the casting
of votes or on the day of the election. (R.A. No. 7166, Sec. 4)
The Commission shall send sufficient copies of its resolution for the holding of
the election to its provincial election supervisors and election registrars for
dissemination, who shall post copies thereof in at least three conspicuous places
preferably where public meetings are held in each city or municipality
affected. (1978 EC, Sec. 8) (emphasis supplied)
In Hassan v. COMELEC, et al.,
[137]
we ruled that constituents could not be charged
with notice of a second special elections held only two days after the failure of the
special election. This case involved the May 8, 1995 regular local elections in Madalum,
Lanao del Sur. Due to the threats of violence and terrorism in the area, there was a
failure of election in six out of twenty-four precincts in Madalum. A special elections was
set on May 27, 1995 but the Board of Election Inspectors failed to report for duty due to
the threats of violence. The Monitoring Supervising Team of the COMELEC reset the
special elections to May 29, 1995 in a school 15 kilometers away from the designated
polling places. In ruling that the May 29 special elections was invalid, the Court
ruled, viz:
We cannot agree with the COMELEC that petitioner, his followers or the constituents
must be charged with notice of the special elections to be held because of the failure
of the two (2) previous elections. To require the voters to come to the polls on such
short notice was highly impracticable. In a place marred by violence, it was necessary
for the voters to be given sufficient time to be notified of the changes and prepare
themselves for the eventuality.
It is essential to the validity of the election that the voters have notice in some
form, either actual or constructive of the time, place and purpose thereof. (Furste
v. Gray, 240 Ky 604, 42 SW 2d 889; State ex. rel. Stipp v. Colliver (MO) 243 SW 2d
344.) The time for holding it must be authoritatively designated in advance. The
requirement of notice even becomes stricter in cases of special elections where it was
called by some authority after the happening of a condition precedent, or at least there
must be a substantial compliance therewith so that it may fairly and reasonably be said
that the purpose of the statute has been carried into effect. (State ex. rel. Stipp v.
Colliver, supra). The sufficiency of notice is determined on whether the voters
generally have knowledge of the time, place and purpose of the elections so as to
give them full opportunity to attend the polls and express their will or on the
other hand, whether the omission resulted in depriving a sufficient number of the
qualified electors of the opportunity of exercising their franchise so as to change
the result of the election. (Housing Authority of County of Kings v. Peden, 212 Cal
App 2d 276, 28 Cal Rptr, other citations omitted)
xxx xxx xxx
...even in highly urbanized areas, the dissemination of notices poses to be a
problem. In the absence of proof that actual notice of the special elections has
reached a great number of voters, we are constrained to consider the May 29
elections as invalid...(emphases supplied)
Although this case did not involve a special election held simultaneously with a general
election by mandate of law as in the case bar, the doctrine that can be derived from this
case is that the electorate must be informed of the special election as proved by official
or actual notice.
VII. Application of the Principles of Democracy, Republicanism
Freedom of Information and Discourse to the Case at Bar
The 1987 Constitution, with its declaration that the Philippines is not only a
republican but also a democratic state, and its various provisions broadening the space
for direct democracy unmistakably show the framers intent to give the Filipino people a
greater say in government. The heart of democracy lies in the majoritarian rule but the
majoritarian rule is not a mere game of dominant numbers. The majority can rule and
rule effectively only if its judgment is an informed one. With an informed electorate, a
healthy collision of ideas is assured that will generate sparks to fan the flames of
democracy. Rule by the ignorant majority is a sham democracy - a mobocracy - for
in the words of Jefferson, a nation cannot be both free and ignorant. If there is
anything that democracy cannot survive, it is the virus of ignorance.
Elections serve as a crevice in the democratic field where voters, for themselves
and the public good, plant the seeds of their ideals and freedoms. Yick Wo is emphatic
that voting is a fundamental right that preserves and cultivates all other rights. In a
republic undergirded by a social contract, the threshold consent of equal people
to form a government that will rule them is renewed in every election where
people exercise their fundamental right to vote to the end that their chosen
representatives will protect their natural rights to life, liberty and property. It is
this sacred contract which makes legitimate the governments exercise of its
powers and the chosen representatives performance of their duties and
functions. The electoral exercise should be nothing less than a pure moment of
informed judgment where the electorate speaks its mind on the issues of the day and
choose the men and women of the hour who are seeking their mandate.
The importance of information and discourse cannot be overemphasized in a
democratic and republican setting. Our constitutional provisions and cases
highlighting the peoples right to information and the duty of the State to provide
information unmistakably recognize the indispensable need of properly informing the
citizenry so they can genuinely participate in and contribute to a functioning democracy.
As elections lie at the foundation of representative democracy, there should be no
quarrel over the proposition that electoral information should also be disseminated to
the electorate as a predicate to an informed judgment.
The ponencia concedes that a survey of COMELECs resolutions relating to the
conduct of the May 14, 2001 elections would reveal that they contain nothing which
would amount to a compliance, either strict or substantial, with the requirements in
Section 2 of R.A. No. 6645, as amended. Nowhere in its resolutions or even its press
releases did COMELEC state that it would hold a special election for a single Senate
seat with a three-year term simultaneously with the regular elections on May 14, 2001.
Nor did COMELEC give official notice of the manner by which the special election would
be conducted, i.e., that the senatorial candidate receiving the 13th highest number of
votes in the election would be declared winner in the special election. Still,
the ponencia upheld the holding of the May 14, 2001 special election despite the lack
of call for such election and ... lack of notice as to the office to be filled and the manner
by which the winner in the special election is to be determined.
With all due respect, I cannot subscribe to the ponencias position for it
leaves the purity of elections and the ascertainment of the will of the electorate to
chance, conjecture and speculation. Considering that elections lie at the heart of the
democratic process because it is through the act of voting that consent to government is
secured, I choose to take a position that would ensure, to the greatest extent possible,
an electorate that is informed, a vote that is not devalued by ignorance and an election
where the consent of the governed is clear and unequivocal.
The ponencia justifies its position on the lack of call or notice of the time and place
of the special election by holding that the law charges voters with knowledge of R.A. No.
7166 which provides that in case of a vacancy in the Senate, the special election to fill
such vacancy shall be held simultaneously with the next succeeding election, that is, the
May 14, 2001 election. The ponencias argument is that the provisions of R.A. No. 7166
stating that the special election would be held simultaneously with the regular election
operated as a call for the election so that the absence of a call by the COMELEC did not
taint the validity of the special election. With due respect, this is not the intention of R.A.
No. 7166 for despite its paragraph 1, Section 7 that in case of such vacancy in the
Senate, the special election shall be held simultaneously with the succeeding regular
election, the law nevertheless required in paragraph 3 of the same section that (t)he
Commission shall send sufficient copies of its resolution for the holding of the
election to its provincial election supervisors and election registrars for
dissemination, who shall post copies thereof in at least three conspicuous places
preferably where public meetings are held in each city or municipality affected.
The Duquette case cited by the ponencia does not lend support to its thesis that
statutory notice suffices. In Duquette, it was held that in the absence of an official
notice of the special election mandated by law to be held simultaneously with the
general election, there should be actual notice of the electorate. Actual notice may
be proved by the voting of a significant percentage of the electorate for the position in
the special election or by other acts which manifest awareness of the holding of a
special election such as nomination of candidates. In the case at bar, however, the
number of votes cast for the special election cannot be determined as the ballot
did not indicate separately the votes for the special election. In fact, whether or not
the electorate had notice of the special election, a candidate would just the same fall as
the 13th placer because more than twelve candidates ran for the regular senatorial
elections. Nobody was nominated to vie specifically for the senatorial seat in the special
election nor was there a certificate of candidacy filed for that position. In the absence of
official notice of the time, place and manner of conduct of the special election, actual
notice is a matter of proof. Respondents and the ponencia cannot point to any proof of
actual notice.
With respect to the lack of notice of the manner by which the special election would
be conducted, i.e., that the 13th placer would be declared winner in the special election,
there can be no debate that statutory notice will not operate as notice to the electorate
as there is no law providing that a special election held simultaneously with a general
election could be conducted in the manner adopted by the Senate and the COMELEC.
Instead, the ponencia buttresses its holding by stating that the petitioner has not
claimed nor proved that the failure of notice misled a sufficient number of voters as
would change the result of the special senatorial election. It relies on actual notice from
many sources, such as media reports of the enactment of R.A. No. 6645 and election
propaganda during the campaign but without even identifying these media reports and
election propaganda. Suffice to state that before theponencia can require proof that a
sufficient number of voters was misled during the May 14, 2001 elections, it must first
be shown that in the absence of official notice of the procedure for the special election,
there was nevertheless actual notice of the electorate so that the special election could
be presumed to be valid. Only then will the duty arise to show proof that a sufficient
number of voters was misled to rebut the presumption of validity.
I respectfully submit that the electorate should have been informed of the time,
place and manner of conduct of the May 14, 2001 special election for the single
senatorial seat for the unexpired term of former Senator Teofisto Guingona,
Jr. Tolentino, UNIDO, Blo Umpar Adiong and Hassan all deepened the doctrine that
a meaningful exercise of the right of suffrage in a genuinely free, orderly and honest
election is predicated upon an electorate informed on the issues of the day, the
programs of government laid out before them, the candidates running in the election
and the time, place and manner of conduct of the election. It is for this reason that the
Omnibus Election Code is studded with processes, procedures and requirements that
ensure voter information.
Bince and Benito further teach us that free and intelligent vote is not
enough; correct ascertainment of the will of the people is equally necessary. The
procedure adopted in the case at bar for holding the May 14, 2001 special senatorial
election utterly failed to ascertain the peoples choice in the special
election. Section 2 of R.A. No. 7166 provides that the special election shall be
held simultaneously with such general election. It does not contemplate, however,
the integration of the special senatorial election into the regular senatorial
election whereby candidates who filed certificates of candidacy for the regular
elections also automatically stand as candidates in the special election. The
Omnibus Election Code is crystal clear that a candidate can run for only one position in
an election. Consequently, there were no candidates in the special election to vote for.
Separate sets of candidates for the special election and the regular elections are
decisive of the election results. Each independent-minded voter could have a variety of
reasons for choosing a candidate to serve for only the unexpired term of three years
instead of the regular term of six years or not choosing a candidate at all. A voter might
choose a neophyte to serve the three-year term as a shorter trial period. Another might
be minded to choose an old timer to compel him to hasten the completion of his projects
in a shorter period of three years. Still another might want to afford a second termer who
has not performed too satisfactorily a second chance to prove himself but not for too
long a period of six years. In not allowing the voter to separately indicate the
candidate he voted for the three-year senatorial term, the voter was deprived of
his right to make an informed judgment based on his own reasons and
valuations.Consequently, his true will in the special election was not ascertained. As a
particle of sovereignty, it is the thinking voter who must determine who should win in the
special election and not the unthinking machine that will mechanically ascertain the 13th
placer in the general election by mathematical computations.
The models to follow in the conduct of special elections mandated by law to be held
simultaneously with a general elections are the special elections of November 13, 1951
and November 8, 1955 to fill the seats vacated by then Senators Fernando Lopez and
Carlos P. Garcia, respectively. In these special senatorial elections, election
activities prior (i.e., filing of certificate of candidacies), during (i.e., the act of voting for
a special election candidate distinct from the candidates for the regular election)
and after the election (i.e., tallying and canvassing of results) were conducted
simultaneously with, but distinctly from the regular senatorial elections. This procedure
minimized voter confusion and allowed the voter to freely and accurately speak his mind
and have his will truly ascertained. Regrettably, this objective appears to have been lost
in the calling of the May 14, 2001 special election as can be gleaned from the Senate
deliberations on the resolution calling for that election, viz:
S[ENATOR] T[ATAD]. Mr. President, in this resolution, we are leaving the
mechanics to the Commission on Elections. But personally, I would like to suggest
that probably, the candidate obtaining the 13th largest number of votes be declared as
elected to fill up the unexpired term of Senator Guingona.
S[ENATOR] O[SMEA]. (J). Is there a law that would allow the Comelec to conduct
such an election? Is it not the case that the vacancy is for a specific office? I am
really at a loss. I am rising here because I think it is something that we should
consider. I do not know if we can...No, this is not a Concurrent Resolution.
S[ENATOR] T[ATAD]. May we solicit the legal wisdom of the Senate President.
T[HE] P[RESIDENT]. May I share this information that under Republic Act No.
6645, what is needed is a resolution of this Chamber calling attention to the need for
the holding of a special election to fill up the vacancy created, in this particular case,
by the appointment of our colleague, Senator Guingona, as Vice President.
It can be managed in the Commission on Elections so that a slot for the particular
candidate to fill up would be that reserved for Mr. Guingonas unexpired term. In
other words, it can be arranged in such a manner.
xxx xxx xxx
S[ENATOR] R[OCO]. Mr. President.
T[HE] P[RESIDENT]. Sen Raul S. Roco is recognized.
S[ENATOR] R[OCO]. May we suggest, subject to a one-minute caucus, wordings to
the effect that in the simultaneous elections, the 13th placer be therefore deemed to be
the special election for this purpose. So we just nominate 13 and it is good for our
colleagues. It is better for the candidates. It is also less expensive because the ballot
will be printed and there will be less disenfranchisement.
T[HE] P[PRESIDENT]. That is right.
S[ENATOR] R[OCO]. If we can just deem it therefore under this resolution to
be such a special election, maybe, we satisfy the requirement of the law.
T[HE] P[RESIDENT]. Yes. In other words, this shall be a guidance for the
Comelec.
S[ENATOR] R[OCO]. Yes.
T[HE] P[RESIDENT]. - to implement.
S[ENATOR] R[OCO]. Yes. The Comelec will not have the flexibility.
T[HE] P[RESIDENT]. That is right.
S[ENATOR] R[OCO]. We will already consider the 13th placer of the forthcoming
elections that will be held simultaneously a? a special election under this law as we
understand it.
T[HE] P[RESIDENT]. Yes. That will be a good compromise, Senator Roco.
S[ENATOR] R[OCO]. Yes. So if the sponsor can introduce that later, maybe it will
be better, Mr. President.
T[HE P[RESIDENT]. What does the sponsor say?
S[ENATOR] [T]ATAD. Mr. President, that is a most satisfactory proposal
because I do not believe that there will be anyone running specifically -
T[HE] P[RESIDENT]. Correct.
S[ENATOR] T[ATAD]. - to fill up this position for three years and campaigning
nationwide.
T[HE] P[RESIDENT]. Actually, I think what is going to happen is
the 13th candidate will be running with specific groups.
S[ENATOR] T[ATAD]. Yes. Whoever gets No. 13.
T[HE] P[RESIDENT]. I think we can specifically define that as the intent of this
resolution.
S[ENATOR] T[ATAD]. Subject to style, we accept that amendment and if there will
be no other amendment, I move for the adoption of this resolution.
ADOPTION OF S. RES. NO. 934
If there are not other proposed amendments, I move that we adopt this resolution.
T[HE] P[RESIDENT]. There is a motion to adopt this resolution. Is there any
objection? [Silence] There being none, the motion is approved.
[138]
(emphases supplied)
The Senates observation that the procedure for the special election that it adopted
would be less costly for the government as the ballots need not be printed again to
separately indicate the candidate voted for the special election does not also lend
justification for the manner of conduct of the May 14, 2001 special election. We cannot
bargain the electorates fundamental right to vote intelligently with the coin of
convenience. Even with the Senate stance, the regular ballot had to be modified to
include a thirteenth space in the list of senatorial seats to be voted for. At any rate,
reliance on R.A. No. 6645 is erroneous. This law provides that when a vacancy arises in
the Senate, the Senate, by resolution, certifies to the existence of the vacancy and
calls for a special election. Upon receipt of the resolution, the COMELEC holds the
special election. R.A. No. 6645 was amended in 1991 by R.A. No. 7166. The latter law
provides that when a permanent vacancy occurs in the Senate at least one year before
the expiration of the term, the Commission (on Elections) shall call and holda
special election to fill the vacancy... Since under R.A. No. 7166, it is the power and duty
of the COMELEC, and not the Senate, to call and hold the election, the Senate cannot,
by mere resolution, impose upon the COMELEC the procedure for the special election
that it intended such that Comelec will not have the flexibility to deviate therefrom. As
a constitutional body created to ensure free, orderly, honest, peaceful, and credible
elections, it was the duty of the COMELEC to give to the electorate notice of the time,
place and manner of conduct of the special elections and to adopt only those
mechanisms and procedures that would ascertain the true will of the people.
In sum, I submit that the ruling of the ponencia would result not just to a step back in
an age of information, but would constitute a fall in the nations rise to democracy begun
as early as the Malolos Constitution and begun anew in the 1987 Constitution after the
1986 People Power Revolution. Informing the electorate on the issues and conduct of
an election is a prerequisite to a free, orderly, honest, peaceful, and credible
elections. Free elections does not only mean that the voter is not physically
restrained from going to the polling booth, but also that the voter is unrestrained
by the bondage of ignorance. We should be resolute in affirming the right of the
electorate to proper information. The Court should not forfeit its role as
gatekeeper of our democratic government run by an informed majority. Let us not
open the door to ignorance.
I vote to grant the petition.

G.R. No. 127685 July 23, 1998
BLAS F. OPLE, petitioner,
vs.
RUBEN D. TORRES, ALEXANDER AGUIRRE, HECTOR VILLANUEVA, CIELITO HABITO,
ROBERT BARBERS, CARMENCITA REODICA, CESAR SARINO, RENATO VALENCIA, TOMAS
P. AFRICA, HEAD OF THE NATIONAL COMPUTER CENTER and CHAIRMAN OF THE
COMMISSION ON AUDIT, respondents.

PUNO, J .:
The petition at bar is a commendable effort on the part of Senator Blas F. Ople to prevent the
shrinking of the right to privacy, which the revered Mr. Justice Brandeis considered as "the most
comprehensive of rights and the right most valued by civilized men."
1
Petitioner Ople prays that we
invalidate Administrative Order No. 308 entitled "Adoption of a National Computerized Identification
Reference System" on two important constitutional grounds, viz: one, it is a usurpation of the power of
Congress to legislate, and two, it impermissibly intrudes on our citizenry's protected zone of privacy. We
grant the petition for the rights sought to be vindicated by the petitioner need stronger barriers against
further erosion.
A.O. No. 308 was issued by President Fidel V. Ramos On December 12, 1996 and reads as follows:
ADOPTION OF A NATIONAL COMPUTERIZED
IDENTIFICATION REFERENCE SYSTEM
WHEREAS, there is a need to provide Filipino citizens and foreign residents with the
facility to conveniently transact business with basic service and social security
providers and other government instrumentalities;
WHEREAS, this will require a computerized system to properly and efficiently identify
persons seeking basic services on social security and reduce, if not totally eradicate
fraudulent transactions and misrepresentations;
WHEREAS, a concerted and collaborative effort among the various basic services
and social security providing agencies and other government intrumentalities is
required to achieve such a system;
NOW, THEREFORE, I, FIDEL V. RAMOS, President of the Republic of the
Philippines, by virtue of the powers vested in me by law, do hereby direct the
following:
Sec. 1. Establishment of a National Compoterized Identification Reference System. A
decentralized Identification Reference System among the key basic services and
social security providers is hereby established.
Sec. 2. Inter-Agency Coordinating Committee. An Inter-Agency Coordinating
Committee (IACC) to draw-up the implementing guidelines and oversee the
implementation of the System is hereby created, chaired by the Executive Secretary,
with the following as members:
Head, Presidential Management Staff
Secretary, National Economic Development Authority
Secretary, Department of the Interior and Local Government
Secretary, Department of Health
Administrator, Government Service Insurance System,
Administrator, Social Security System,
Administrator, National Statistics Office
Managing Director, National Computer Center.
Sec. 3. Secretariat. The National Computer Center (NCC) is hereby designated as
secretariat to the IACC and as such shall provide administrative and technical
support to the IACC.
Sec. 4. Linkage Among Agencies. The Population Reference Number (PRN)
generated by the NSO shall serve as the common reference number to establish a
linkage among concerned agencies. The IACC Secretariat shall coordinate with the
different Social Security and Services Agencies to establish the standards in the use
of Biometrics Technology and in computer application designs of their respective
systems.
Sec. 5. Conduct of Information Dissemination Campaign. The Office of the Press
Secretary, in coordination with the National Statistics Office, the GSIS and SSS as
lead agencies and other concerned agencies shall undertake a massive tri-media
information dissemination campaign to educate and raise public awareness on the
importance and use of the PRN and the Social Security Identification Reference.
Sec. 6. Funding. The funds necessary for the implementation of the system shall be
sourced from the respective budgets of the concerned agencies.
Sec. 7. Submission of Regular Reports. The NSO, GSIS and SSS shall submit
regular reports to the Office of the President through the IACC, on the status of
implementation of this undertaking.
Sec. 8. Effectivity. This Administrative Order shall take effect immediately.
DONE in the City of Manila, this 12th day of December in the year of Our Lord,
Nineteen Hundred and Ninety-Six.
(SGD.) FIDEL V. RAMOS
A.O. No. 308 was published in four newspapers of general circulation on January 22, 1997 and
January 23, 1997. On January 24, 1997, petitioner filed the instant petition against respondents,
then Executive Secretary Ruben Torres and the heads of the government agencies, who as
members of the Inter-Agency Coordinating Committee, are charged with the implementation of A.O.
No. 308. On April 8, 1997, we issued a temporary restraining order enjoining its implementation.
Petitioner contends:
A. THE ESTABLISNMENT OF A NATIONAL COMPUTERIZED IDENTIFICATION
REFERENCE SYSTEM REQUIRES A LEGISLATIVE ACT. THE ISSUANCE OF
A.O. NO. 308 BY THE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES IS,
THEREFORE, AN UNCONSTITUTIONAL USURPATION OF THE LEGISLATIVE
POWERS OF THE CONGRESS OF THE REPUBLIC OF THE PHILIPPINES.
B. THE APPROPRIATION OF PUBLIC FUNDS BY THE PRESIDENT FOR THE
IMPLEMENTATION OF A.O. NO. 308 IS AN UNCONSTITUTIONAL USURPATION
OF THE EXCLUSIVE RIGHT OF CONGRESS TO APPROPRIATE PUBLIC FUNDS
FOR EXPENDITURE.
C. THE IMPLEMENTATION OF A.O. NO. 308 INSIDIOUSLY LAYS THE
GROUNDWORK FOR A SYSTEM WHICH WILL VIOLATE THE BILL OF RIGHTS
ENSHRINED IN THE CONSTITUTION.
2

Respondents counter-argue:
A. THE INSTANT PETITION IS NOT A JUSTICIABLE CASE AS WOULD
WARRANT A JUDICIAL REVIEW;
B. A.O. NO. 308 [1996] WAS ISSUED WITHIN THE EXECUTIVE AND
ADMINISTRATIVE POWERS OF THE PRESIDENT WITHOUT ENCROACHING ON
THE LEGISLATIVE POWERS OF CONGRESS;
C. THE FUNDS NECESSARY FOR THE IMPLEMENTATION OF THE
IDENTIFICATION REFERENCE SYSTEM MAY BE SOURCED FROM THE
BUDGETS OF THE CONCERNED AGENCIES;
D. A.O. NO. 308 [1996] PROTECTS AN INDIVIDUAL'S INTEREST IN PRIVACY.
3

We now resolve.
I
As is usual in constitutional litigation, respondents raise the threshold issues relating to the standing
to sue of the petitioner and the justiciability of the case at bar. More specifically, respondents aver
that petitioner has no legal interest to uphold and that the implementing rules of A.O. No. 308 have
yet to be promulgated.
These submissions do not deserve our sympathetic ear. Petitioner Ople is a distinguished member
of our Senate. As a Senator, petitioner is possessed of the requisite standing to bring suit raising the
issue that the issuance of A.O. No. 308 is a usurpation of legislative power.
4
As taxpayer and
member of the Government Service Insurance System (GSIS), petitioner can also impugn the legality of
the misalignment of public funds and the misuse of GSIS funds to implement A.O. No. 308.
5

The ripeness for adjudication of the Petition at bar is not affected by the fact that the implementing
rules of A.O. No. 308 have yet to be promulgated. Petitioner Ople assails A.O. No. 308 as invalid per
se and as infirmed on its face. His action is not premature for the rules yet to be promulgated cannot
cure its fatal defects. Moreover, the respondents themselves have started the implementation of
A.O. No. 308 without waiting for the rules. As early as January 19, 1997, respondent Social Security
System (SSS) caused the publication of a notice to bid for the manufacture of the National
Identification (ID) card.
6
Respondent Executive Secretary Torres has publicly announced that
representatives from the GSIS and the SSS have completed the guidelines for the national identification
system.
7
All signals from the respondents show their unswerving will to implement A.O. No. 308 and we
need not wait for the formality of the rules to pass judgment on its constitutionality. In this light, the
dissenters insistence that we tighten the rule on standing is not a commendable stance as its result would
be to throttle an important constitutional principle and a fundamental right.
II
We now come to the core issues. Petitioner claims that A.O. No. 308 is not a mere administrative
order but a law and hence, beyond the power of the President to issue. He alleges that A.O. No. 308
establishes a system of identification that is all-encompassing in scope, affects the life and liberty of
every Filipino citizen and foreign resident, and more particularly, violates their right to privacy.
Petitioner's sedulous concern for the Executive not to trespass on the lawmaking domain of
Congress is understandable. The blurring of the demarcation line between the power of the
Legislature to make laws and the power of the Executive to execute laws will disturb their delicate
balance of power and cannot be allowed. Hence, the exercise by one branch of government of
power belonging to another will be given a stricter scrutiny by this Court.
The line that delineates Legislative and Executive power is not indistinct. Legislative power is "the
authority, under the Constitution, to make laws, and to alter and repeal them."
8
The Constitution, as
the will of the people in their original, sovereign and unlimited capacity, has vested this power in the
Congress of the Philippines.
9
The grant of legislative power to Congress is broad, general and
comprehensive.
10
The legislative body possesses plenary power for all purposes of civil
government.
11
Any power, deemed to be legislative by usage and tradition, is necessarily possessed by
Congress, unless the Constitution has lodged it elsewhere.
12
In fine, except as limited by the
Constitution, either expressly or impliedly, legislative power embraces all subjects and extends to matters
of general concern or common interest.
13

While Congress is vested with the power to enact laws, the President executes the laws.
14
The
executive power is vested in the Presidents.
15
It is generally defined as the power to enforce and
administer the laws.
16
It is the power of carrying the laws into practical operation and enforcing their due
observance.
17

As head of the Executive Department, the President is the Chief Executive. He represents the
government as a whole and sees to it that all laws are enforced by the officials and employees of his
department.
18
He has control over the executive department, bureaus and offices. This means that he
has the authority to assume directly the functions of the executive department, bureau and office or
interfere with the discretion of its officials.
19
Corollary to the power of control, the President also has the
duty of supervising the enforcement of laws for the maintenance of general peace and public order. Thus,
he is granted administrative power over bureaus and offices under his control to enable him to discharge
his duties effectively.
20

Administrative power is concerned with the work of applying policies and enforcing orders as
determined by proper governmental organs.
21
It enables the President to fix a uniform standard of
administrative efficiency and check the official conduct of his agents.
22
To this end, he can issue
administrative orders, rules and regulations.
Prescinding from these precepts, we hold that A.O. No. 308 involves a subject that is not appropriate
to be covered by an administrative order. An administrative order is:
Sec. 3. Administrative Orders. Acts of the President which relate to particular
aspects of governmental operation in pursuance of his duties as administrative head
shall be promulgated in administrative orders.
23

An administrative order is an ordinance issued by the President which relates to specific
aspects in the administrative operation of government. It must be in harmony with the law
and should be for the sole purpose of implementing the law and carrying out the legislative
policy.
24
We reject the argument that A.O. No. 308 implements the legislative policy of the
Administrative Code of 1987. The Code is a general law and "incorporates in a unified document
the major structural, functional and procedural principles of governance."
25
and "embodies
changes in administrative structure and procedures designed to serve the
people."
26
The Code is divided into seven (7) Books: Book I deals with Sovereignty and General
Administration, Book II with the Distribution of Powers of the three branches of Government, Book
III on the Office of the President, Book IV on the Executive Branch, Book V on Constitutional
Commissions, Book VI on National Government Budgeting, and Book VII on Administrative
Procedure. These Books contain provisions on the organization, powers and general
administration of the executive, legislative and judicial branches of government, the organization
and administration of departments, bureaus and offices under the executive branch, the
organization and functions of the Constitutional Commissions and other constitutional bodies, the
rules on the national government budget, as well as guideline for the exercise by administrative
agencies of quasi-legislative and quasi-judicial powers. The Code covers both the internal
administration of government, i.e, internal organization, personnel and recruitment, supervision
and discipline, and the effects of the functions performed by administrative officials on private
individuals or parties outside government.
27

It cannot be simplistically argued that A.O. No. 308 merely implements the Administrative Code of
1987. It establishes for the first time a National Computerized Identification Reference System. Such
a System requires a delicate adjustment of various contending state policies the primacy of
national security, the extent of privacy interest against dossier-gathering by government, the choice
of policies, etc. Indeed, the dissent of Mr. Justice Mendoza states that the A.O. No. 308 involves the
all-important freedom of thought. As said administrative order redefines the parameters of some
basic rights of our citizenry vis-a-vis the State as well as the line that separates the administrative
power of the President to make rules and the legislative power of Congress, it ought to be evident
that it deals with a subject that should be covered by law.
Nor is it correct to argue as the dissenters do that A.D. No. 308 is not a law because it confers no
right, imposes no duty, affords no proctection, and creates no office. Under A.O. No. 308, a citizen
cannot transact business with government agencies delivering basic services to the people without
the contemplated identification card. No citizen will refuse to get this identification card for no one
can avoid dealing with government. It is thus clear as daylight that without the ID, a citizen will have
difficulty exercising his rights and enjoying his privileges. Given this reality, the contention that A.O.
No. 308 gives no right and imposes no duty cannot stand.
Again, with due respect, the dissenting opinions unduly expand the limits of administrative legislation
and consequently erodes the plenary power of Congress to make laws. This is contrary to the
established approach defining the traditional limits of administrative legislation. As well stated by
Fisher: ". . . Many regulations however, bear directly on the public. It is here that administrative
legislation must he restricted in its scope and application. Regulations are not supposed to be a
substitute for the general policy-making that Congress enacts in the form of a public law. Although
administrative regulations are entitled to respect, the authority to prescribe rules and regulations is
not an independent source of power to make laws."
28

III
Assuming, arguendo, that A.O. No. 308 need not be the subject of a law, still it cannot pass
constitutional muster as an administrative legislation because facially it violates the right to privacy.
The essence of privacy is the "right to be let alone."
29
In the 1965 case of Griswold v.
Connecticut,
30
the United States Supreme Court gave more substance to the right of privacy when it
ruled that the right has a constitutional foundation. It held that there is a right of privacy which can be
found within the penumbras of the First, Third, Fourth, Fifth and Ninth Amendments,
31
viz:
Specific guarantees in the Bill of Rights have penumbras formed by emanations from
these guarantees that help give them life and substance . . . various guarantees
create zones of privacy. The right of association contained in the penumbra of the
First Amendment is one, as we have seen. The Third Amendment in its prohibition
against the quartering of soldiers "in any house" in time of peace without the consent
of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms
the ''right of the people to be secure in their persons, houses and effects, against
unreasonable searches and seizures." The Fifth Amendment in its Self-Incrimination
Clause enables the citizen to create a zone of privacy which government may not
force him to surrender to his detriment. The Ninth Amendment provides: "The
enumeration in the Constitution, of certain rights, shall not be construed to deny or
disparage others retained by the people."
In the 1968 case of Morfe v. Mutuc,
32
we adopted the Griswold ruling that there is a
constitutional right to privacy. Speaking thru Mr. Justice, later Chief Justice, Enrique Fernando,
we held:
xxx xxx xxx
The Griswold case invalidated a Connecticut statute which made the use of
contraceptives a criminal offence on the ground of its amounting to an
unconstitutional invasion of the right of privacy of married persons; rightfully it
stressed "a relationship lying within the zone of privacy created by several
fundamental constitutional guarantees." It has wider implications though. The
constitutional right to privacy has come into its own.
So it is likewise in our jurisdiction. The right to privacy as such is accorded
recognition independently of its identification with liberty; in itself, it is fully deserving
of constitutional protection. The language of Prof. Emerson is particularly apt: "The
concept of limited government has always included the idea that governmental
powers stop short of certain intrusions into the personal life of the citizen. This is
indeed one of the basic distinctions between absolute and limited government.
Ultimate and pervasive control of the individual, in all aspects of his life, is the
hallmark of the absolute state. In contrast, a system of limited government
safeguards a private sector, which belongs to the individual, firmly distinguishing it
from the public sector, which the state can control. Protection of this private sector
protection, in other words, of the dignity and integrity of the individual has become
increasingly important as modern society has developed. All the forces of a
technological age industrialization, urbanization, and organization operate to
narrow the area of privacy and facilitate intrusion into it. In modern terms, the
capacity to maintain and support this enclave of private life marks the difference
between a democratic and a totalitarian society."
Indeed, if we extend our judicial gaze we will find that the right of privacy is recognized and
enshrined in several provisions of our Constitution.
33
It is expressly recognized in section 3 (1) of the
Bill of Rights:
Sec. 3. (1) The privacy of communication and correspondence shall be inviolable
except upon lawful order of the court, or when public safety or order requires
otherwise as prescribed by law.
Other facets of the right to privacy are protectad in various provisions of the Bill of
Rights, viz:
34

Sec. 1. No person shall be deprived of life, liberty, or property without due process of law,
nor shall any person be denied the equal protection of the laws.
Sec. 2. The right of the people to be secure in their persons, houses papers, and
effects against unreasonable searches and seizures of whatever nature and for any
purpose shall be inviolable, and no search warrant or warrant of arrest shall issue
except upon probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the witnesses he may
produce, and particularly describing the place to be searched and the persons or
things to be seized.
xxx xxx xxx
Sec. 6. The liberty of abode and of changing the same within the limits prescribed by
law shall not be impaired except upon lawful order of the court. Neither shall the right
to travel be impaired except in the interest of national security, public safety, or public
health as may be provided by law.
xxx xxx xxx
Sec. 8. The right of the people, including those employed in the public and private
sectors, to form unions, associations, or societies for purposes not contrary to law
shall not be abridged.
Sec. 17. No person shall be compelled to be a witness against himself.
Zones of privacy are likewise recognized and protected in our laws. The Civil Code provides that
"[e]very person shall respect the dignity, personality, privacy and peace of mind of his neighbors and
other persons" and punishes as actionable torts several acts by a person of meddling and prying into
the privacy of another.
35
It also holds a public officer or employee or any private individual liable for
damages for any violation of the rights and liberties of another person,
36
and recognizes the privacy of
letters and other private communications.
37
The Revised Penal Code makes a crime the violation of
secrets by an officer,
38
the revelation of trade and industrial secrets,
39
and trespass to
dwelling.
40
Invasion of privacy is an offense in special laws like the Anti-Wiretapping Law,
41
the Secrecy
of Bank Deposits Act
42
and the Intellectual Property Code.
43
The Rules of Court on privileged
communication likewise recognize the privacy of certain information.
44

Unlike the dissenters, we prescind from the premise that the right to privacy is a fundamental right
guaranteed by the Constitution, hence, it is the burden of government to show that A.O. No. 308 is
justified by some compelling state interest and that it is narrowly drawn. A.O. No. 308 is predicated
on two considerations: (1) the need to provides our citizens and foreigners with the facility to
conveniently transact business with basic service and social security providers and other
government instrumentalities and (2) the need to reduce, if not totally eradicate, fraudulent
transactions and misrepresentations by persons seeking basic services. It is debatable whether
these interests are compelling enough to warrant the issuance of A.O. No. 308. But what is not
arguable is the broadness, the vagueness, the overbreadth of A.O. No. 308 which if implemented
will put our people's right to privacy in clear and present danger.
The heart of A.O. No. 308 lies in its Section 4 which provides for a Population Reference Number
(PRN) as a "common reference number to establish a linkage among concerned agencies" through
the use of "Biometrics Technology" and "computer application designs."
Biometry or biometrics is "the science of the applicatin of statistical methods to biological facts; a
mathematical analysis of biological data."
45
The term "biometrics" has evolved into a broad category of
technologies which provide precise confirmation of an individual's identity through the use of the
individual's own physiological and behavioral characteristics.
46
A physiological characteristic is a
relatively stable physical characteristic such as a fingerprint, retinal scan, hand geometry or facial
features. A behavioral characteristic is influenced by the individual's personality and includes voice print,
signature and keystroke.
47
Most biometric idenfication systems use a card or personal identificatin
number (PIN) for initial identification. The biometric measurement is used to verify that the individual
holding the card or entering the PIN is the legitimate owner of the card or PIN.
48

A most common form of biological encoding is finger-scanning where technology scans a fingertip
and turns the unique pattern therein into an individual number which is called a biocrypt. The
biocrypt is stored in computer data banks
49
and becomes a means of identifying an individual using a
service. This technology requires one's fingertip to be scanned every time service or access is
provided.
50
Another method is the retinal scan. Retinal scan technology employs optical technology to
map the capillary pattern of the retina of the eye. This technology produces a unique print similar to a
finger print.
51
Another biometric method is known as the "artificial nose." This device chemically analyzes
the unique combination of substances excreted from the skin of people.
52
The latest on the list of
biometric achievements is the thermogram. Scientists have found that by taking pictures of a face using
infra-red cameras, a unique heat distribution pattern is seen. The different densities of bone, skin, fat and
blood vessels all contribute to the individual's personal "heat signature."
53

In the last few decades, technology has progressed at a galloping rate. Some science fictions are
now science facts. Today, biometrics is no longer limited to the use of fingerprint to identify an
individual. It is a new science that uses various technologies in encoding any and all biological
characteristics of an individual for identification. It is noteworthy that A.O. No. 308 does not state
what specific biological characteristics and what particular biometrics technology shall be used to
identify people who will seek its coverage. Considering the banquest of options available to the
implementors of A.O. No. 308, the fear that it threatens the right to privacy of our people is not
groundless.
A.O. No. 308 should also raise our antennas for a further look will show that it does not state
whether encoding of data is limited to biological information alone for identification purposes. In fact,
the Solicitor General claims that the adoption of the Identification Reference System will contribute to
the "generation of population data for development planning."
54
This is an admission that the PRN will
not be used solely for identification but the generation of other data with remote relation to the avowed
purposes of A.O. No. 308. Clearly, the indefiniteness of A.O. No. 308 can give the government the roving
authority to store and retrieve information for a purpose other than the identification of the individual
through his PRN.
The potential for misuse of the data to be gathered under A.O. No. 308 cannot be undarplayed as
the dissenters do. Pursuant to said administrative order, an individual must present his PRN
everytime he deals with a government agency to avail of basic services and security. His
transactions with the government agency will necessarily be recorded whether it be in the
computer or in the documentary file of the agency. The individual's file may include his transactions
for loan availments, income tax returns, statement of assets and liabilities, reimbursements for
medication, hospitalization, etc. The more frequent the use of the PRN, the better the chance of
building a huge formidable informatin base through the electronic linkage of the files.
55
The data may
be gathered for gainful and useful government purposes; but the existence of this vast reservoir of
personal information constitutes a covert invitation to misuse, a temptation that may be too great for some
of our authorities to resist.
56

We can even grant, arguendo, that the computer data file will be limited to the name, address and
other basic personal infomation about the individual.
57
Even that hospitable assumption will not save
A.O. No. 308 from constitutional infirmity for again said order does not tell us in clear and categorical
terms how these information gathered shall he handled. It does not provide who shall control and access
the data, under what circumstances and for what purpose. These factors are essential to safeguard the
privacy and guaranty the integrity of the information.
58
Well to note, the computer linkage gives other
government agencies access to the information. Yet, there are no controls to guard against leakage of
information. When the access code of the control programs of the particular computer system is broken,
an intruder, without fear of sanction or penalty, can make use of the data for whatever purpose, or worse,
manipulate the data stored within the system.
59

It is plain and we hold that A.O. No. 308 falls short of assuring that personal information which will be
gathered about our people will only be processed for unequivocally specified purposes.
60
The lack of
proper safeguards in this regard of A.O. No. 308 may interfere with the individual's liberty of abode and
travel by enabling authorities to track down his movement; it may also enable unscrupulous persons to
access confidential information and circumvent the right against self-incrimination; it may pave the way for
"fishing expeditions" by government authorities and evade the right against unreasonable searches and
seizures.
61
The possibilities of abuse and misuse of the PRN, biometrics and computer technology are
accentuated when we consider that the individual lacks control over what can be read or placed on his ID,
much less verify the correctness of the data encoded.
62
They threaten the very abuses that the Bill of
Rights seeks to prevent.
63

The ability of sophisticated data center to generate a comprehensive cradle-to-grave dossier on an
individual and transmit it over a national network is one of the most graphic threats of the computer
revolution.
64
The computer is capable of producing a comprehensive dossier on individuals out of
information given at different times and for varied purposes.
65
It can continue adding to the stored data
and keeping the information up to date. Retrieval of stored date is simple. When information of a
privileged character finds its way into the computer, it can be extracted together with other data on the
subject.
66
Once extracted, the information is putty in the hands of any person. The end of privacy begins.
Though A.O. No. 308 is undoubtedly not narrowly drawn, the dissenting opinions would dismiss its
danger to the right to privacy as speculative and hypothetical. Again, we cannot countenance such a
laidback posture. The Court will not be true to its role as the ultimate guardian of the people's liberty
if it would not immediately smother the sparks that endanger their rights but would rather wait for the
fire that could consume them.
We reject the argument of the Solicitor General that an individual has a reasonable expectation of
privacy with regard to the Natioal ID and the use of biometrics technology as it stands on quicksand.
The reasonableness of a person's expectation of privacy depends on a two-part test: (1) whether by
his conduct, the individual has exhibited an expectation of privacy; and (2) whether this expectation
is one that society recognizes as reasonable.
67
The factual circumstances of the case determines the
reasonableness of the expectation.
68
However, other factors, such as customs, physical surroundings
and practices of a particular activity, may serve to create or diminish this expectation.
69
The use of
biometrics and computer technology in A.O. No. 308 does not assure the individual of a reasonable
expectation of privacy.
70
As technology advances, the level of reasonably expected privacy
decreases.
71
The measure of protection granted by the reasonable expectation diminishes as relevant
technology becomes more widely accepted.
72
The security of the computer data file depends not only on
the physical inaccessibility of the file but also on the advances in hardware and software computer
technology. A.O. No. 308 is so widely drawn that a minimum standard for a reasonable expectation of
privacy, regardless of technology used, cannot be inferred from its provisions.
The rules and regulations to be by the IACC cannot remedy this fatal defect. Rules and regulations
merely implement the policy of the law or order. On its face, A.O. No. gives the IACC virtually
infettered discretion to determine the metes and bounds of the ID System.
Nor do your present laws prvide adequate safeguards for a reasonable expectation of privacy.
Commonwealth Act. No. 591 penalizes the disclosure by any person of data furnished by the
individual to the NSO with imprisonment and fine.
73
Republic Act. No. 1161 prohibits public disclosure
of SSS employment records and reports.
74
These laws, however, apply to records and data with the NSO
and the SSS. It is not clear whether they may be applied to data with the other government agencies
forming part of the National ID System. The need to clarify the penal aspect of A.O. No. 308 is another
reason why its enactment should be given to Congress.
Next, the Solicitor General urges us to validate A.O. No. 308's abridgment of the right of privacy by
using the rational relationship test.
75
He stressed that the purposes of A.O. No. 308 are: (1) to
streamline and speed up the implementation of basic government services, (2) eradicate fraud by
avoiding duplication of services, and (3) generate population data for development planning. He cocludes
that these purposes justify the incursions into the right to privacy for the means are rationally related to
the end.
76

We are not impressed by the argument. In Morfe v. Mutuc,
77
we upheld the constitutionality of R.A.
3019, the Anti-Graft and Corrupt Practices Act, as a valid police power measure. We declared that the
law, in compelling a public officer to make an annual report disclosing his assets and liabilities, his
sources of income and expenses, did not infringe on the individual's right to privacy. The law was enacted
to promote morality in public administration by curtailing and minimizing the opportunities for official
corruption and maintaining a standard of honesty in the public service.
78

The same circumstances do not obtain in the case at bar. For one, R.A. 3019 is a statute, not an
administrative order. Secondly, R.A. 3019 itself is sufficiently detailed. The law is clear on what
practices were prohibited and penalized, and it was narrowly drawn to avoid abuses. IN the case at
bar, A.O. No. 308 may have been impelled by a worthy purpose, but, it cannot pass constitutional
scrutiny for it is not narrowly drawn. And we now hod that when the integrity of a fundamental right is
at stake, this court will give the challenged law, administrative order, rule or regulation a stricter
scrutiny. It will not do for the authorities to invoke the presumption of regularity in the performance of
official duties. Nor is it enough for the authorities to prove that their act is not irrational for a basic
right can be diminished, if not defeated, even when the government does not act irrationally. They
must satisfactorily show the presence of compelling state interests and that the law, rule or
regulation is narrowly drawn to preclude abuses. This approach is demanded by the 1987
Constitution whose entire matrix is designed to protect human rights and to prevent authoritarianism.
In case of doubt, the least we can do is to lean towards the stance that will not put in danger the
rights protected by the Constitutions.
The case of Whalen v. Roe
79
cited by the Solicitor General is also off-line. In Whalen, the United States
Supreme Court was presented with the question of whether the State of New York could keep a
centralized computer record of the names and addresses of all persons who obtained certain drugs
pursuant to a doctor's prescription. The New York State Controlled Substance Act of 1972 required
physicians to identify parties obtaining prescription drugs enumerated in the statute, i.e., drugs with a
recognized medical use but with a potential for abuse, so that the names and addresses of the patients
can be recorded in a centralized computer file of the State Department of Health. The plaintiffs, who were
patients and doctors, claimed that some people might decline necessary medication because of their fear
that the computerized data may be readily available and open to public disclosure; and that once
disclosed, it may stigmatize them as drug addicts.
80
The plaintiffs alleged that the statute invaded a
constitutionally protected zone of privacy, i.e., the individual interest in avoiding disclosure of personal
matters, and the interest in independence in making certain kinds of important decisions. The U.S.
Supreme Court held that while an individual's interest in avoiding disclosuer of personal matter is an
aspect of the right to privacy, the statute did not pose a grievous threat to establish a constitutional
violation. The Court found that the statute was necessary to aid in the enforcement of laws designed to
minimize the misuse of dangerous drugs. The patient-identification requirement was a product of an
orderly and rational legislative decision made upon recommmendation by a specially appointed
commission which held extensive hearings on the matter. Moreover, the statute was narrowly drawn and
contained numerous safeguards against indiscriminate disclosure. The statute laid down the procedure
and requirements for the gathering, storage and retrieval of the informatin. It ebumerated who were
authorized to access the data. It also prohibited public disclosure of the data by imposing penalties for its
violation. In view of these safeguards, the infringement of the patients' right to privacy was justified by a
valid exercise of police power. As we discussed above, A.O. No. 308 lacks these vital safeguards.
Even while we strike down A.O. No. 308, we spell out in neon that the Court is not per se agains the
use of computers to accumulate, store, process, retvieve and transmit data to improve our
bureaucracy. Computers work wonders to achieve the efficiency which both government and private
industry seek. Many information system in different countries make use of the computer to facilitate
important social objective, such as better law enforcement, faster delivery of public services, more
efficient management of credit and insurance programs, improvement of telecommunications and
streamlining of financial activities.
81
Used wisely, data stored in the computer could help good
administration by making accurate and comprehensive information for those who have to frame policy
and make key decisions.
82
The benefits of the computer has revolutionized information technology. It
developed the internet,
83
introduced the concept of cyberspace
84
and the information superhighway
where the individual, armed only with his personal computer, may surf and search all kinds and classes of
information from libraries and databases connected to the net.
In no uncertain terms, we also underscore that the right to privacy does not bar all incursions into
individual privacy. The right is not intended to stifle scientific and technological advancements that
enhance public service and the common good. It merely requires that the law be narrowly
focused
85
and a compelling interest justify such intrusions.
86
Intrusions into the right must be
accompanied by proper safeguards and well-defined standards to prevent unconstitutional invasions. We
reiterate that any law or order that invades individual privacy will be subjected by this Court to strict
scrutiny. The reason for this stance was laid down in Morfe v. Mutuc, to wit:
The concept of limited government has always included the idea that governmental
powers stop short of certain intrusions into the personal life of the citizen. This is
indeed one of the basic disctinctions between absolute and limited government.
Ultimate and pervasive control of the individual, in all aspects of his life, is the
hallmark of the absolute state. In contrast, a system of limited government
safeguards a private sector, which belongs to the individual, firmly distinguishing it
from the public sector, which the state can control. Protection of this private sector
protection, in other words, of the dignity and integrity of the individual has become
increasingly important as modern society has developed. All the forces of a
technological age industrialization, urbanization, and organization operate to
narrow the area of privacy and facilitate intrusion into it. In modern terms, the
capacity to maintain and support this enclave of private life marks the difference
between a democratic and a totalitarian society.
87

IV
The right to privacy is one of the most threatened rights of man living in a mass society. The threats
emanate from various sources governments, journalists, employers, social scientists, etc.
88
In th
case at bar, the threat comes from the executive branch of government which by issuing A.O. No. 308
pressures the people to surrender their privacy by giving information about themselves on the pretext that
it will facilitate delivery of basic services. Given the record-keeping power of the computer, only the
indifferent fail to perceive the danger that A.O. No. 308 gives the government the power to compile a
devastating dossier against unsuspecting citizens. It is timely to take note of the well-worded warning of
Kalvin, Jr., "the disturbing result could be that everyone will live burdened by an unerasable record of his
past and his limitations. In a way, the threat is that because of its record-keeping, the society will have
lost its benign capacity to forget."
89
Oblivious to this counsel, the dissents still say we should not be too
quick in labelling the right to privacy as a fundamental right. We close with the statement that the right to
privacy was not engraved in our Constitution for flattery.
IN VIEW WHEREOF, the petition is granted and Adminisrative Order No. 308 entitled "Adoption of a
National Computerized Identification Reference System" declared null and void for being
unconstitutional.
SO ORDERED.
Bellosillo and Martinez, JJ., concur.
Narvasa, C.J., I join Justices Kapunan and Mendoza in their dissents.
Regalado, J., In the result.
Davide, Jr., In the result and I join Mr. Justice Panganiban in his separate opinion.
Romero, J., Please see separate opinion.
Melo, J., I join the dissents of Justices Kapunan and Mendoza.
Vitug, J., See separate opinion.
Kapunan, J., See dissenting opinion.
Mendoza, J., Please see dissenting opinion.
Panganiban, J., Please see Separate Opinion.
Quisumbing, J., I join in dissenting opinion of JJ. Mendoza and Kapunan.
Purisima, J., I join in Justice Mendoza's dissenting.



Separate Opinions

ROMERO, J ., separate opinion;
What marks offs man from a beast?
Aside from the distinguishing physical characteristics, man is a rational being, one who is endowed
with intellect which allows him to apply reasoned judgment to problems at hand; he has the innate
spiritual faculty which can tell, not only what is right but, as well, what is moral and ethical. Because
of his sensibilities, emotions and feelings, he likewise possesses a sense of shame. In varying
degrees as dictated by diverse cultures, he erects a wall between himself and the outside world
wherein he can retreat in solitude, protecting himself from prying eyes and ears and their extensions,
whether form individuals, or much later, from authoritarian intrusions.
Piercing through the mists of time, we find the original Man and Woman defying the injunction of
God by eating of the forbidden fruit in the Garden. And when their eyes were "opened" forthwith
"they sewed fig leaves together, and made themselves aprons."
1
Down the corridors of time, we find
man fashioning "fig leaves" of sorts or setting up figurative walls, the better to insulate themselves from
the rest of humanity.
Such vague stirrings of the desire "to be left alone," considered "anti-social" by some, led to the
development of the concept of "privacy," unheard of among beasts. Different branches of science,
have made their own studies of this craving of the human spirit psychological, anthropological
sociological and philosophical, with the legal finally giving its imprimatur by elevating it to the status
ofa right, specifically a private right.
Initially recognized as an aspect of tort law, it created giant waves in legal circles with the publication
in the Harvard Law Review
2
of the trail-blazing article, "The Right to Privacy," by Samuel D. Warren and
Louis D. Brandeis.
Whether viewed as a personal or a property right, it found its way in Philippine Constitutions and
statutes; this, in spite of the fact that Philippine culture can hardly be said to provide a fertile field for
the burgeoning of said right. In fact, our lexicographers have yet to coin a word for it in the Filipino
language. Customs and practices, being what they have always been, Filipinos think it perfectly
natural and in good taste to inquire into each other's intimate affairs.
One has only to sit through a televised talk show to be convinced that what passes for wholesome
entertainment is actually an invasion into one's private life, leaving the interviewee embarrassed and
outraged by turns.
With the overarching influence of common law and the recent advent of the Information Age with its
high-tech devices, the right to privacy has expanded to embrace its public law aspect. The Bill of
Rights of our evolving Charters, a direct transplant from that of the United States, contains in
essence facets of the right to privacy which constitute limitations on the far-reaching powers of
government.
So terrifying are the possibilities of a law such as Administrative Order No. 308 in making inroads
into the private lives of the citizens, a virtual Big Brother looking over our shoulder, that it must,
without delay, be "slain upon sight" before our society turns totalitarian with each of us, a mindless
robot.
I, therefore, VOTE for the nullification of A.O. No. 308.

VITUG, J ., separate opinion;
One can appreciate the concern expressed by my esteemed colleague, Mr. Justice Reynato S.
Puno, echoing that of the petitioner, the Honorable Blas F. Ople, on the issuance of Administrative
Order No. 308 by the President of the Philippines and the dangers its implementation could bring. I
find it hard, nevertheless, to peremptorily assume at this time that the administrative order will be
misused and to thereby ignore the possible benefits that can be derived from, or the merits of, a
nationwide computerized identification reference system. The great strides and swift advances in
technology render it inescapable that one day we will, at all events, have to face up with the reality of
seeing extremely sophisticated methods of personal identification and any attempt to stop the
inevitable may either be short-lived or even futile. The imperatives, I believe, would instead be to
now install specific safeguards and control measures that may be calculated best to ward-off
probable ill effects of any such device. Here, it may be apropos to recall the pronouncement of this
Court in People vs. Nazario
1
that
As a rule, a statute or [an] act may be said to be vague when it lacks comprehensible
standards that men "of common intelligence must necessarily guess at its meaning
and differ as to its application." It is repugnant to the Constitution in two respects: (1)
it violates due process for failure to accord persons, especially the parties targeted
by it, fair notice of the conduct to avoid; and (2) it leaves law enforcers unbridled
discretion in carrying out its provisions and becomes an arbitrary flexing of the
Government muscle.
2

Administrative Order No. 308 appears to be so extensively drawn that could, indeed, allow
unbridled options to become available to its implementors beyond the reasonable comfort of
the citizens and of residents alike.
Prescinding from the foregoing, and most importantly to this instance, the subject covered by the
questioned administrative order can have far-reaching consequences that can tell on all individuals,
their liberty and privacy, that, to my mind, should make it indispensable and appropriate to have the
matter specifically addressed by the Congress of the Philippines, the policy-making body of our
government, to which the task should initially belong and to which the authority to formulate and
promulgate that policy is constitutionally lodged.
WHEREFORE, I vote for the nullification of Administrative Order No. 308 for being an undue and
impermissible exercise of legislative power by the Executive.

PANGANIBAN, J ., separate opinion;
I concur only in the result and only on the ground that an executive issuance is not legally sufficient
to establish an all-encompassing computerized system of identification in the country. The subject
matter contained in AO 308 is beyond the powers of the President to regulate without a legislative
enactment.
I reserve judgmeht on the issue of wherher a national ID system is an infringement of the
constitutional right to privacy or the freedom of thought until after Congress passes, if ever, a law to
this effect. Only then, and upon the filing of a proper petition, may the provisions of the statute be
scrutinized by the judiciary to determine their constitutional foundation. Until such time, the issue is
premature; and any decision thereon, speculative and academic.
1

Be that as it may, the scholarly discussions of Justices Romero, Puno, Kapunan and Mendoza on
the constitutional right to privacy and freedom of thought may stil become useful guides to our
lawmakers, when and if Congress should deliberate on a bill establishing a national identification
system.
Let it be noted that this Court, as shown by the voting of the justices, has not definitively ruled on
these points. The voting is decisive only on the need for the appropriate legislation, and it is only on
this ground that the petition is granted by this Court.

KAPUNAN, J ., dissenting opinion;
The pioneering efforts of the executive to adopt a national computerized identification reference
system has met fierce opposition. It has spun dark predictions of sinister government ploys to
tamper with the citizen's right to privacy and ominous forecasts of a return to authoritarianism. Lost
in the uproar, however, is the simple fact that there is nothing in the whole breadth and lenght of
Administrative Order No. 308 that suggests a taint constitutional infirmity.
A.O. No. 308 issued by President Fidel V. Ramos on 12 December 1996 reads:
ADMTNISTRATIVE ORDER NO. 308
ADOPTION OF A NATIONAL COMPUTERIZED
IDENTIFICATION REFERENCE SYSTEM
WHEREAS, there is a need to provide Filipino citizens and foreign residents with the
facility to conveniently transact business with basic services and social security
providers and other government instrumentalities;
WHEREAS, this will require a computerized system to properly and efficiently identify
persons seeking basic services and social security and reduce, if not totally
eradicate, fraudulent transactions and misrepresentations;
WHEREAS, a concerted and collaborative effort among the various basic services
and social security providing agencies and other government instrumentalities is
required to achieve such a system;
NOW, THEREFORE, I, FIDEL V. RAMOS, President of the Repubic of the
Philippines, by virtue of the powers vested in me by law, do hereby direct the
following:
Sec. 1 Establishment of a National Computerized Identification Reference System. A
decentralized Identification Reference System among the key basic services and
social security providers is hereby established.
Sec. 2. Inter-Agency Coordinating Committee. An Inter-Agency Coordinating
Committee (IACC) to draw-up the implementing guidelines and oversee the
implementation of the System is hereby created, chaired by the Executive Secretary,
with the following as members:
Head Presidential Management Staff
Secretary, National Economic Development Authority
Secretary, Department of the Interior and Local Government
Secretary, Department of Health
Administrator, Government Service Insurance System
Administrator, Social Security System
Administrator, National Statistics Office
Managing Director, National Computer Center
Sec. 3. Secretariat. The National Computer Center (NCC) is hereby designated as
secretariat to the IACC and as such shall provide administrative and technical
support to the IACC.
Sec. 4. Linkage Among Agencies. The Population Reference Number (PRN)
generated by the NSO shall serve as the common reference number to establish a
linkage among concerned agencies. The IACC Secretariat shall coordinate with the
different Social Security and Services Agencies to establish the standards in the use
of Biometrics Technology and in computer application designs of their respective
systems.
Sec. 5. Conduct of Information Dissemination Campaign. The Office of the Press
Secretary, in coordination with the National Statistics Offices, the GSIS and SSS as
lead agencies and other concerned agencies shall undertake a massive tri-media
information dissemination campaign to educate and raise public awareness on the
importance and use of the PRN and the Social Security Identification Reference.
Sec. 6. Funding. The funds necessary for the implementation of the system shall be
sourced from the respective budgets of the concerned agencies.
Sec. 7. Submission of Regular Reports. The NSO, GSIS and SSS shall submit
regular reports to the Office of the President, through the IACC, on the status of
implementation of this undertaking.
Sec. 8 Effectivity. This Administartive Order shall take effect immediately.
DONE in the City of Manila, this 12th day of December in the year of Our Lord,
Nineteen Hundred and Ninety-Six.
In seeking to strike down A.O. No. 308 as unconstitutional, petitioner argues:
A. THE ESTABLISHMENT OF NATIONAL COMPUTERIZED IDENTIFICATION
REFERENCE SYSTEM REQUIRES A LEGISLATIVE ACT. THE ISSUACE OF A.O.
NO. 308 BY THE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES IS,
THEREFORE, AN UNCONSTITUTIONAL USURPATION OF THE LEGISLATIVE
POWERS OF THE CONGRESS OF THE REPUBLIC OF THE PHILIPPINES.
B. THE APPROPRIATION OF PUBLIC FUNDS BY THE PRESIDENT FOR THE
IMPLEMENTATION OF A.O. NO. 308 IS AN UNCONSTITUTIONAL USURPATION
OF THE EXCLUSIVE RIGHT OF CONGRESS TO APPROPRIATE PUBLIC FUNDS
FOR EXPENDITURE.
C. THE IMPLEMENTATION OF A.O. NO. 308 INSIDIOUSLY LAYS THE
GROUNDWORK FOR A SYSTEM WHICH WILL VIOLATE THE BILL OF RIGHTS
ENSHRINED IN THE CONSTITUTION.
The National Computerized Identification Reference system to which the NSO, GSIS and SSS are
linked as lead members of the IACC is intended to establish uniform standards for ID cards isssued
by key government agencies (like the SSS)
1
for the "efficient identification of persons."
2
Under the new
system, only one reliable and tamper-proof I.D. need be presented by the cardholder instead of several
identification papers such as passports and driver's license,
3
to able to transact with government
agencies. The improved ID can be used to facilitate public transactions such as:
1. Payment of SSS and GSIS benefits
2. Applications for driver's license, BIR TIN, passport, marriage
license, death certificate, NBI and police clearances, and business
permits
3. Availment of Medicare services in hospitals
4. Availment of welfare services
5. Application for work/employment
6. Pre-requisite for Voter's ID.
4

The card may also be used for private transactions such as:
1. Opening of bank accounts
2. Encashment of checks
3. Applications for loans, credit cards, water, power, telephones,
pagers, etc.
4. Purchase of stocks
5. Application for work/employment
6. Insurance claims
7. Receipt of payments, checks, letters, valuables, etc.
5

The new identification system would tremendously improve and uplift public service in our country to
the benefit of Filipino citizens and resident aliens. It would promote, facilitate and speed up
legitimate transactions with government offices as well as with private and business entities.
Experience tells us of the constant delays and inconveniences the public has to suffer in availing of
basic public services and social security benefits because of inefficient and not too reliable means of
identification of the beneficiaries.
Thus, in the "Primer on the Social Security Card and Administrative Order No. 308" issued by the
SSS, a lead agency in the implementation of the said order, the following salient features are
mentioned:
1. A.O. 308 merely establishes the standards for I.D. cards issued by key
government agencies such as SSS and GSIS.
2. It does not establish a national I.D. system neither does it require a national I.D.
card for every person.
3. The use of the I.D. is voluntary.
4. The I.D. is not required for delivery of any government service. Everyone has the
right to basic government services as long as he is qualified under existing laws.
5. The LD. cannot and will not in any way be used to prevent one to travel.
6. There will be no discrimination Non-holders of the improved I.D. are still entitled to
the same services but will be subjected to the usual rigid identification and
verification beforehand.
I
The issue that must first be hurdled is: was the issuance of A.O. No. 308 an exercise by the
President of legislative power properly belonging to Congress?
It is not.
The Administrative Code of 1987 has unequivocally vested the President with quasi-legislative
powers in the form of executive orders, administrative orders, proclamations, memorandum orders
and circulars and general or special orders.
6
An administrative order, like the one under which the new
identification system is embodied, has its peculiar meaning under the 1987 Administrative Code:
Sec. 3. Administrative Orders. Acts of the President which relate to particular
aspects of governmental operations in pursuance of his duties as administrative
head shall be promulgated in administrative orders.
The National Computerized Identification Reference System was established pursuant to the
aforaquoted provision precisely because its principal purpose, as expressly stated in the order, is to
provide the people with "the facility to conveniently transact business" with the various government
agencies providing basic services. Being the "administrative head," it is unquestionably the
responsibility of the President to find ways and means to improve the government bureaucracy, and
make it more professional, efficient and reliable, specially those government agencies and
instrumentalities which provide basic services and which the citizenry constantly transact with, like
the Government Service Insurance System (GSIS), Social Security System (SSS) and National
Statistics Office (NSO). The national computerized ID system is one such advancement. To
emphasize, the new identification reference system is created to streamline the bureaucracy, cut the
red tape and ultimately achieve administrative efficiency. The project, therefore, relates to, is an
appropriate subject and falls squarely within the ambit of the Chief Executive's administrative power
under which, in order to successfully carry out his administrative duties, he has been granted by law
quasi-legislative powers, quoted above.
Understandably, strict adherence to the doctrine of separation of power spawns differences of
opinion. For we cannot divide the branches of government into water-tight compartment. Even if
such is possible, it is neither desirable nor feasible. Bernard Schwartz, in his work Administrative
Law, A Casebook, thus states:
To be sure, if we think of the separation of powers as carrying out the distinction
between legislation and administration with mathematical precision and as dividing
the branches of government into watertight compartments, we would probably have
to conclude that any exercise of lawmaking authority by an agency is automatically
invalid. Such a rigorous application of the constitutional doctrine is neither desirable
nor feasible; the only absolute separation that has ever been possible was that in the
theoretical writings of a Montesquieu, who looked across at foggy England from his
sunny Gascon vineyards and completely misconstrued what he saw.
7

A mingling of powers among the three branches of government is not a novel concept. This blending
of powers has become necessary to properly address the complexities brought about by a rapidly
developing society and which the traditional branches of government have difficulty coping with.
8

It has been said that:
The true meaning of the general doctrine of the separation of powers seems to be
that the whole power of one department should not be exercised by the same hands
which possess the whole power of either of the other department, and that no one
department ought to possess directly or indirectly an overruling influence over the
others. And it has been that this doctrine should be applied only to the powers which
because of their nature are assigned by the constitution itself to one of the
departments exclusively. Hence, it does not necessarily follow that an entire and
complete separation is either desirable of was ever intended, for such a complete
separation would be impracticable if not impossible; there may be-and frequently are-
areas in which executive, legislative, and judicial powers blend or overlap; and many
officers whose duties cannot be exclusively placed under any one of these heads.
The courts have perceived the necessity of avoiding a narrow construction of a state
constitutional provision for the division of the powers of the government into three
distinct departments, for it is impractical to view the provision from the standpoint of a
doctrinaire. Thus, the modern view of separation of powers rejects the metaphysical
abstractions and reverts instead to more pragmatic, flexible, functional approach,
giving recognition to the fact that then may be a certain degree of blending or
admixture of the three powers of the government. Moreover, the doctrine of
separation of powers has never been strictly or rigidly applied, and indeed could not
be, to all the ramifications of state or national governments; government would prove
abortive if it were attempted to follow the policy of separation to the letter.
9

In any case A.O. No. 308 was promulgated by the President pursuant to the quasi-legislative powers
expressly granted to him by law and in accordance with his duty as administrative head. Hence, the
contention that the President usurped the legislative prerogatives of Congress has no firm basis.
II
Having resolved that the President has the authority and prerogative to issue A.O. No. 308, I submit
that it is premature for the Court to determine the constitutionality or unconstitutionality of the
National Computerized Identification Reference System.
Basic in constitutional law is the rule that before the court assumes jurisdiction over and decide
constitutional issues, the following requisites must first be satisfied:
1) there must be an actual case or controversy involving a conflict of rights susceptible of judicial
determination;
2) the constitutional question must be raised by a proper party;
3) the constitutional question must be raised at the earliest opportunity; and
4) the resolution of the constitutional question must be necessary to the resolution of the case.
10

In this case, it is evident that the first element is missing. Judicial intervention calls for an actual case
or controversy which is defined as "an existing case or controversy that is appropriate or ripe for
determination, not conjectural or anticipatory."
11
Justice Isagani A. Cruz further expounds that "(a)
justifiable controversy is thus distinguished from a difference or dispute of a hypothetical or abstract
character or from one that is academic or moot. The controversy must be definite and concrete, touching
the legal relations of parties having adverse legal interests. It must be a real and substantial controversy
admitting of special relief through a decree that is conclusive in character, as distinguished from an
opinion advising what the law would be upon a hypothetical state of facts. . . ."
12
A.O. No. 308 does not
create any concrete or substantial controversy. It provides the general framework of the National
Computerized Identification Reference System and lays down the basic standards (efficiency,
convenience and prevention of fraudulent transactions) for its cretion. But as manifestly indicated in the
subject order, it is the Inter-Agency Coordinating Committee (IACC) which is tasked to research, study
and formulate the guidelines and parameters for the use of Biometrics Technology and in computer
application designs that will and define give substance to the new system.
13
This petition is, thus,
premature considering that the IACC is still in the process of doing the leg work and has yet to codify and
formalize the details of the new system.
The majority opines that the petition is ripe for adjudication even without the promulgation of the
necessary guidelines in view of the fact that respondents have begun implementation of A.O. No.
308. The SSS, in particular, has started advertising in newspapers the invitation to bid for the
production of the I.D. cards.
14

I beg to disagree. It is not the new system itself that is intended to be implemented in the invitation to
bid but only the manufacture of the I.D. cards. Biometrics Technology is not and cannot be used in
the I.D. cards as no guidelines therefor have yet been laid down by the IACC. Before the assailed
system can be set up, it is imperative that the guidelines be issued first.
III
Without the essential guidelines, the principal contention for invalidating the new identification
reference system that it is an impermissible encroachment on the constitutionally recognized right
to privacy is plainly groundless. There is nothing in A.O. No. 308 to serve as sufficient basis for a
conclusion that the new system to be evolved violates the right to privacy. Said order simply
provides the system's general framework. Without the concomitant guidelines, which would spell out
in detail how this new identification system would work, the perceived violation of the right to privacy
amounts to nothing more than mere surmise and speculation.
What has caused much of the hysteria over the National Computerized Identification Reference
System is the possible utilization of Biometrics Technology which refers to the use of autnomated
matching of physiological or behavioral characteristics to identify a person that would violated the
citizen's constitutionally protected right to privacy.
The majority opinion has enumerated various forms and methods of Biometrics Technology which if
adopted in the National Computaized Identification Reference System would seriously threaten the
right to privacy. Among which are biocrypt retinal scan, artificial nose and thermogram. The majority
also points to certain alleged deficiencies of A O. No. 308. Thus:
1) A.O. No. 308 does not specify the particular Biometrics Technology that shall be
used for the new identification system.
2) The order dots not state whether encoding of data is limited to biological
information alone for identification purposes;
3) There is no provision as to who shall control and access the data, under what
circumstances and for what purpose; and
4) There are no controls to guard against leakage of information, thus heightening
the potential for misuse and abuse.
We should not be overwhelmed by the mere mention of the Biometrics Technology and its alleged,
yet unfounded "far-reaching effects."
There is nothing in A.O. No. 308, as it is worded, to suggest that the advanced methods of the
Biometrics Technology that may pose danger to the right of privacy will be adopted.
The standards set in A.O. No. 308 for the adoption of the new system are clear-cut and
unequivocably spelled out in the "WHEREASES" and body of the order, namely, the need to provide
citizens and foreign residents with the facility to conveniently transact business with basic
service and social security providers and other government instrumentalities; the computerized
system is intended to properly and efficiently identify persons seeking basic services or social
security and reduce, if not totally eradicate fraudulent transactions and misreprentation; the national
identification reference system is established among the key basic services and social security
providers; and finally, the IACC Secretariat shall coordinate with different Social Security and
Services Agencies to establish the standards in the use of Biometrics Technology. Consequently,
the choice of the particular form and extent of Biometrics Technology that will be applied and the
parameters for its use (as will be defined in the guidelines) will necessarily and logically be guided,
limited and circumscribed by the afore-stated standards. The fear entertained by the majority on the
potential dangers of this new technology is thus securedly allayed by the specific limitations set by
the above-mentioned standards. More than this, the right to privacy is well-esconced in and directly
protected by various provisions of the Bill of Rights, the Civil Code, the Revised Penal Code, and
certain laws, all so painstakingly and resourcefully catalogued in the majority opinion. Many of these
laws provide penalties for their violation in the form of imprisonment, fines, or damages. These laws
will serve as powerful deterrents not only in the establishment of any administrative rule that will
violate the constitutionally protected right to privacy, but also to would-be transgressors of such right.
Relevant to this case is the ruling of the U.S. Supreme Court in Whalen v. Roe.
15
In that case, a New
York statute was challenged for requiring physicians to identify patients obtaining prescription drugs of the
statute's "Schedule II" category (a class of drugs having a potential for abuse and a recognized medical
use) so the names and addresses of the prescription drug patients can be recorded in a centralized
computer file maintained by the New York State Department of Health. Some patients regularly receiving
prescription for "Schedule II" drugs and doctors who prescribed such drugs brought an action questioning
the validity of the statute on the ground that it violated the plaintiffs' constitutionally protected rights of
privacy.
In a unanimous decision, the US Supreme Court sustained the validity of the statute on the ground
that the patient identification requirement is a reasonable exercise of the State's broad police
powers. The Court also held that there is no support in the record for an assumption that the security
provisions of the statute will be adiministered improperly. Finally, the Court opined that the remote
possibility that judicial supervision of the evidentiary use of particular items of stored information will
not provide adequate protection against unwarranted diclosures is not a sufficient reason for
invalidating the patient-identification program.
To be sure, there is always a possibility of an unwarranted disclosure of confidential matters
enomously accumulated in computerized data banks and in government records relating to taxes,
public health, social security benefits, military affairs, and similar matters. But as previously pointed
out, we have a sufficient number of laws prohibiting and punishing any such unwarranted
disclosures. Anent this matter, the observation in Whalen vs. Roe is instructive:
. . . We are not unaware of the threat to privacy implicit in the accumulation of vast
amounts of personal information in computerized data banks or other massive
government files. The collection of taxes, the distribution of welfare and social
security benefits, the supervision of public health, the direction of our Armed Forces
and the enforcement of the criminal laws all require the orderly preservation of great
quantities of information, much of which is personal in character and potentially
embarrassing or harmful if disclosed. The right to collect and use such data for public
purposes is typically accompanied by a concomitant statutory or regulatory duty to
avoid unwarranted disclosures. . . .
16

The majority laments that as technology advances, the level of reasonably expected privacy
decreases. That may be true. However, court should tread daintily on the field of social and
economic experimentation lest they impede or obstruct the march of technology to improve public
services just on the basis of an unfounded fear that the experimentation violates one's
constitutionally protected rights. In the sobering words of Mr. Justice Brandeis:
To stay experimentation in things social and economic is a grave responsibility.
Denial of the right to experiment may be fraught with serious consequences to the
Nation. It is one of the happy incidents of the federal system that a single courageous
State may, if its citizens choose, serve as a laboratory; and try novel social and
economic experiments without risk to the rest of the country. This Court has the
power to prevent an experiment. We may strike down the statute which embodies it
on the ground that, in our opinion, the measure is arbitary, capricious or
unreaonable. We have power to do this, because the due process clause has been
held by he Court applicable to matters of substantive law as well as to matters of
procedure. But in the exercise of this high power, we must be ever on our guard, lest
we erect our prejudices into legal principles. If we would guide by the light of reason,
we must let our minds be bold.
17

Again, the concerns of the majority are premature precisely because there are as yet no guidelines
that will direct the Court and serve as solid basis for determining the constitutionality of the new
identification system. The Court cannot and should not anticipate the constitutional issues and rule
on the basis of guesswok. The guidelines would, among others, determine the particular biometrics
method that would be used and the specific personal data that would be collected provide the
safeguard, (if any) and supply the details on how this new system in supposed to work. The Court
should not jump the gun on the Executive.
III
On the issue of funding, the majority submits that Section 6 of A.O. No. 308, which allows the
government agencies included in the new system to obtain funding form their respective budgets, is
unconstitutional for being an illegal transfer of appropriations.
It is not so. The budget for the national identification system cannot be deemed a transfer of funds
since the same is composed of and will be implemented by the member government agancies.
Morever, thses agencies particularly the GSIS and SSS have been issuing some form of
identification or membership card. The improved ID cards that will be issued under this new system
would just take place of the old identification cards and budget-wise, the funds that were being used
to manufacture the old ID cards, which are usually accounted for under the "Supplies and Materials"
item of the Government Accounting and Auditing Manual, could now be utilized to fund the new
cards. Hence, what is envisioned is not transfer of appropriations but a pooling of funds and
resources by the various government agencies involved in the project.
WHEREFORE, I vote to dismiss the petition.

MENDOZA, J ., separate opinion;
My vote is to dismiss the petition in this case.
First. I cannot find anything in the text of Administrative Order No. 308 of the President of the
Philippines that would warrant a declaration that it is violative of the right of privacy. So far as I can
see, all the Administrative Orders does is
establish an Identification Reference System involving the following service
agencies of the government:
Presidential Management Staff
National Economic Developemnt Authority
Department of the Interior and Local Government
Department of Health
Government Service Isurance System
Social Security Office
National Computer Center
create a committee, composed of the heads of the agencies concerned, to
draft rules for the System;
direct the use of the Population Reference Number (PRN) generated by the
National Census and Statistics Office as the common reference number to
link the participating agencies into an Identification Reference System, and
the adoption by the agencies of standards in the use of biometrics technology
and computer designs; and
provide for the funding of the System from the budgets of the agencies
concerned.
Petitioner argues, however, that "the implementation of A.O. No. 308 will mean that each and every
Filipino and resident will have a file with the government containing, at the very least, his PRN and
physiological biometrics such as, but not limited to, his facial features, hand geometry, retinal or iris
pattern, DNA pattern, fingerprints, voice characteristics, and signature analysis."
In support of his contention, petitioner quotes the following publication surfed from the Internet:
The use of biometrics is the means by which an individual may be conclusively
identified. There are two types of biometrics identifiers; Physical and behavioral
characteristics, Physiological biometrics include facial features, hand geometry,
retinal and iris patterns. DNA, and fingerprints characteristics include voice
characteristics and signature analysis.
1

I do not see how from the bare provisions of the Order, the full text of which is set forth in the
majority opinion, petitioner and the majority can conclude that the Identification Reference System
establishes such comprehensive personal information dossiers that can destroy individual privacy.
So far as the Order provides, all that is contemplated is an identification system based on data which
the government agencies involved have already been requiring individuals making use of their
services to give.
For example, under C.A. No. 591, 2(a) the National Statistics Office collects "by enumeration,
sampling or other methods, statistics and other information concerning population . . . social and
economic institutions, and such other statistics as the President may direct." In addition, it is in
charge of the administration of the Civil Register,
2
which means that it keeps records of information
concerning the civil status of persons, i.e., (a) births, (b) deaths, (c) marriages and their annulments; (d)
legitimations, (e) adoptions, (f) acknowledgments of natural children, (g) naturalizations, and (h) changes
of name.
3

Other statutes giving government agencies the power to require personal information may be cited.
R.A. No. 4136, 23 gives the Land Transportation Office the power to require applicants for a
driver's license to give information regarding the following: their full names, date of birth, height,
weight, sex, color of eyes, blood type, address, and right thumbprint;
4
while R.A. No. 8239, 5 gives
the Department of Foreign Affairs the power to require passport applicants to give information concerning
their names, place of birth, date of birth, religious affiliation, marital status, and citizenship.
Justice Romero, tracing the origin of privacy to the attempt of the first man and woman to cover their
nakedness with fig leaves, bemoans the fact that technology and institutional pressures have
threatened our sense of privacy. On the other hand, the majority would have none of the
Identification Reference System "to prevent the shrinking of the right to privacy, once regarded as
"the most comprehensive of rights and the right most valued by civilized men.""
5
Indeed, techniques
such as fingerprinting or electronic photography in banks have become commonplace. As has been
observed, the teaching hospital has come to be accepted as offering madical services that compensate
for the loss of the isolation of the sickbed; the increased capacity of applied sciences to utilize more and
more kinds of data and the cosequent calls for such data have weakened traditional resistance to
disclosure. As the area of relevance, political or scientific, expands, there is strong psychological pressure
to yield some ground of privacy.
6

But this is a fact of life to which we must adjust, as long as the intrusion into the domain of privacy is
reasonable. InMorfe v. Mutuc,
7
this Court dealt the coup de grace to claims of latitudinarian scope for
the right of privacy by quoting the pungent remark of an acute observer of the social scene, Carmen
Guerrero-Nakpil:
Privacy? What's that? There is no precise word for it in Filipino, and as far as I know
any Filipino dialect and there is none because there is no need for it. The concept
and practice of privacy are missing from conventional Filipino life. The Filipino
believes that privacy is an unnecessary imposition, an eccentricity that is barely
pardonable or, at best, an esoteric Western afterthought smacking of legal trickery.
8

Justice Romero herself says in her separate opinion that the word privacy is not even in the
lexicon of Filipinos.
As to whether the right of privacy is "the most valued right," we do well to remember the encomiums
paid as well to other constitutional rights. For Professor Zechariah Chafee, "The writ of habeas
corpus is "the most important human rights provision in the fundamental law,""
9
For Justice Cardozo,
on the other hand, freedom of expression "is the matrix, the indispensable condition of nearly every other
form of freedom."
10

The point is that care must be taken in assigning values to constitutional rights for the purpose of
calibrating them on the judicial scale, especially if this means employing stricter standards of review
for regulations alleged to infringe certain rights deemed to be "most valued by civilized men.''
Indeed, the majority concedes that "the right of privacy does not bar all incursions into individual
privacy . . . [only that such] incursions into the right must be accompanied by proper safeguards and
well-defined standards to prevent unconstitutional invasions."
11
In the case of the Identification
Reference System, the purpose is to facilitate the transaction of business with service agencies of the
government and to prevent fraud and misrepresentation. The personal identification of an individual can
facilitate his treatment in any government hospital in case of emergency. On the other hand, the delivery
of material assistance, such as free medicines, can be protected from fraud or misrepresentation as the
absence of a data base makes it possible for unscrupulous individuals to obtain assistance from more
than one government agency.
Second. Thus, the issue in this case is not really whether A.O. No. 308 violates the right of privacy
formed by emanations from the several constitutional rights cited by the majority.
12
The question is
whether it violates freedom of thought and of conscience guaranteed in the following provisions of our Bill
of Rights (Art. III):
Sec. 4. No law Shall be passed abridging the freedom of speech, of expression, or of
the press, or the right of the people peaceably to assemble and petition the
government for redress of grievances.
Sec. 5. No law shall be made respecting an establishment of religion, or prohibiting
the free exercise thereof. The free exercise enjoyment of religious profession and
worship, without discrimination or preference, shall be forever be allowed. No
religious test shall be required for the exercise of civil or political rights.
More specifically, the question is whether the establishment of the Identification Reference System
will not result in the compilation of massive dossiers on individuals which, beyond their use for
identification, can become instruments of thought control. So far, the next of A.O. No. 308 affords no
basis for believing that the data gathered can be used for such sinister purpose. As already stated,
nothing that is not already being required by the concerned agencies of those making use of their
servides is required by the Order in question. The Order simply organizes service agencies of the
government into a System for the purpose of facilitating the identification of persons seeking basic
services and social security. Thus, the whereas clauses of A.O. No. 308 state:
WHEREAS, there is a need to provide Filipino citizens and foreign residents with the
facility to conveniently transact business with basic services and social security
providers and other government instrumentalities;
WHEREAS, this will require a computerized system to properly and efficiently identify
persons seeking basic services and social security, and reduce, if not totally
eradicate, fraudulent transactions and misrepresentations;
WHEREAS, a concerted and collaborative effort among the various basic services
and social security providing agencies and other government instrumentalities is
required to achieve such a system:
The application of biometric technology and the standardization of computer designs can
provide service agencies with precise identification of individuals, but what is wrong with
that?
Indeed, A.O. No. 308 is no more than a directive to government agencies which the President of the
Philippines has issued in his capacity as administrative head.
13
It is not a statute. It confers no right; it
imposes no duty; it affords no protection; it creates no office.
14
It is, as its name indicates, a mere
administrative order, the prescise nature of which is given in the following excerpt from the decision in the
early case of Olsen & Co. v. Herstein:
15

[It] is nothing more or less than a command from a superior to an inferior. It creates
no relation except between the official who issues it and the official who receives it.
Such orders, whether executive or departmental, have for their object simply the
efficient and economical administration of the affairs of the department to which or in
which they are issued in accordance with the law governing the subject-matter. They
are administrative in their nature and do not pass beyond the limits of the department
to which they are directed or in which they are published, and, therefore, create no
rights in third persons.They are based on, and are the product of a relationship in
which power is their source and obedience their object. Disobedience to or deviation
from such an order can be punished only by the power which issued it: and, if that
power fails to administer the corrective, then the disobedience goes unpunished.In
that relationship no third person or official may intervene, not even the court. Such
orders may be very temporary, they being subject to instant revocation or
modification by the power which published them. Their very nature, as determined by
the relationship which prodecued them, demonstrates clearly the impossibility of any
other person enforcing them except the one who created them. An attempt on the
part of the courts to enforce such orders would result not only in confusion but,
substantially, in departmental anarchy also.
16

Third. There is no basis for believing that, beyond the identification of individuals, the System will be
used for illegal purposes. Nor are sanctions lacking for the unauthorized use or disclosure of
information gathered by the various agencies constituting the System. For example, as the Solicitor
General points out. C.A. No. 591. 4 penalizes the unauthorized use or disclosure of data furnished
the NSO with a fine of not more than P600.00 or imprisonment for not more than six months or both.
At all events, at this stage, it is premature to pass on the claim that the Identification Reference
System can be used for the purpose of compiling massive dossiers on individuals that can be used
to curtail basic civil and political rights since, if at all, this can only be provided in the implementing
rules and regulations which have yet to be promulgated. We have already stated that A.O. No. 308
is not a statute. Even in the case of statutes, however, where implementing rules are necessary to
put them into effect, it has been held that an attack on their constitutionality would be
premature.
17
As Edgar in King Lear puts it, "Ripeness is all."
18
For, to borrow some more
Shakespearean lines,
The canker galls the infants of the spring
Too oft before their buttons be disclos'd.
19

That, more than any doctrine of constitutional law I can think of, succinctly expresses the rule
on ripeness, prematurity, and hypothetical, speculative, or conjectural claims.
Of special relevance to this case is Laird v. Tatum.
20
There, a class suit was brought seeking
declaratory and injunctive relief on the claim that a U.S. Army intelligence surveillance of civilian political
activity having "a potential for civil disorder" exercised "a present inhibiting effect on [respondents'] full
expression and utilization of their First Amendment rights." In holding the case nonjusticiable, the U.S.
Supreme Court, in an opinion by Chief Justice Burger. said:
21

In recent years this Court has found in a number of cases that constitutional
violations may arise from the deterrent or ''chilling," effect of governmental
regulations that fall short of a direct prohibition against the exercise of First
Amendment rights. [Citation of cases omitted] In none of these cases, however, did
the chilling effect arise merely from the individual's knowledge that a governmental
agency was engaged in certain activities or from the individual's concomitant fear
that, armed with the fruits of those activities, the agency might in the future take
some other and additional action detrimental to that individual. Rather, in each of
these cases, the challenged exercise of governmental power was regulatory,
proscriptive, or compulsory in nature, and the complainant was either presently or
prospectively subject to the regulations, proscriptions, or compulsions that he was
challenging. . . .
[T]hese decisions have in no way eroded the "established principle that to entitle a
private individual to invoke the judicial power to determine the validity of executive or
legislative action he must show that he was sustained or is immediately in danger of
sustaining a direct injury as the result of that action. . . .
The respondents do not meet this test; [the] alleged "chilling" effect may perhaps be
seen as arising from respondents' perception of the system as inappropriate to the
Army's role under our form of government, or as arising from respondents' beliefs
that it is inherently dangerous for the military to be concerned with activities in the
civilian sector, or as arising from respondents' less generalized yet speculative
apprehensiveness that the Army may at some future date misuse the information in
some way that would cause direct harm to respondents. Allegations of a subjective
"chill" are not an adequate substitute for a claim of specific present objective harm or
a threat of specific future harm: "the federal courts established pursuant to Article III
of the Constitution do not render advisory opinions." United Public Workers v.
Mitchell, 330 US 75, 89, 91 L Ed 754, 766, 67 S Ct 556 (1947).
Fourth. Given the fact that no right of privacy is involved in this case and that any objection to the
identification Reference System on the ground that it violates freedom of thought is premature,
speculative, or conjectural pending the issuance of the implementing rules, it is clear that petitioner
Blas F. Ople has no cause of action and, therefore, no standing to bring this action. Indeed, although
he assails A.O. No. 308 on the ground that it violates the right of privacy, he claims no personal
injury suffered as a result of the Order in question. Instead, he says he is bringing this action as
taxpayer, Senator, and member of the Government Service Insurance System.
Insofar as petitioner claims an interest as taxpayer, it is sufficient to say that A.O. No. 308 does not
involve the exercise of the taxing or spending power of the government.
Insofar as he purports to sue as a member of the GSIS, neither does petitioner have an intertest
sufficient to enable him to litigate a constitutional question. Petitioner claims that in providing that the
funds necessary for implementing the System shall be taken from the budgets of the concerned
agencies. A.O. No. 308 violates Art. VI, 25(5) which. provides:
No law shall be passed authorizing any transfer of appropriations; however, the
President, the President of the Senate, the Speaker of the House of Representatives,
the Chief Justice of the Supreme Court, and the heads of Constitutional
Commissions may, by law, be authorized to augment any item in the general
appropriations law for their respective offices from savings in other items of their
respective appropriations.
But, as the Solicitor General states:
Petitioner's argument is anchored on two erroneous assumptions: one, that all the
concerned agencies, including the SSS and the GSIS, receive budgetary support
from the national government; and two, that the GAA is the only law whereby public
funds are appropriated. Both assumptions are wrong.
The SSS and GSIS do not presently receive budgetary support from the National
Government. They have achieved self-supporting status such that the contributions
of their members are sufficient to finance their expenses. One would be hard pressed
to find in the GAA an appropriation of funds to the SSS and the GSIS.
Furthermore, their respective charters authorize the SSS and the GSIS to disburse
their funds (Rep. Act No. 1161 [1954], as amended, Sec. 25; Pres. Decree No. 1146
[1977], as amended, Sec. 29) without the need for a separate appropriation from the
Congress.
Nor as Senator can petitioner claim standing since no power of Congress is alleged to have been
impaired by the Administrative Order in question.
22
As already stated, in issuing A.O. No. 308, the
President did not exercise the legislative power vested by the Constitution in Congress. He acted on the
basis of his own powers as administrative head of the government, as distinguished from his capacity as
the Executive. Dean Sinco elucidates the crucial distinction thus:
The Constitution of the Philippines makes the President not only the executive but
also the administrative head of the government. . . . Executive power refers to the
legal and political function of the President involving the exercise of discretion.
Administrative power, on the other hand, concerns itself with the work of applying
policies and enforcing orders as determined by proper governmental organs. These
two functions are often confused by the public: but they are distinct from each other.
The President as the executive authority has the duty of supervising the enforcement
of laws for the maintenance of general peace and public order. As administrative
head, his duty is to see that every government office is managed and maintained
properly by the persons in charge of it in accordance with pertinent laws and
regulations.
. . . The power of control vested in him by the Constitution makes for a strongly
centralized administrative system. It reinforces further his position as the executive of
the government, enabling him to comply more effectively with his constitutional duty
to enforce the laws. It enables him to fix a uniform standard of a administrative
eficiency and to check the official conduct of his agents. The decisions of all the
officers within his department are subject to his power of revision, either on his own
motion or on the appeal of some individual who might deem himself aggrieved by the
action of an administrative official. In case of serious dereliction of duty, he may
suspend or remove the officials concerned.
23

For the foregoing reasons, the petition should be DISMISSED.

# Separate Opinions
ROMERO, J ., separate opinion;
What marks offs man from a beast?
Aside from the distinguishing physical characteristics, man is a rational being, one who is endowed
with intellect which allows him to apply reasoned judgment to problems at hand; he has the innate
spiritual faculty which can tell, not only what is right but, as well, what is moral and ethical. Because
of his sensibilities, emotions and feelings, he likewise possesses a sense of shame. In varying
degrees as dictated by diverse cultures, he erects a wall between himself and the outside world
wherein he can retreat in solitude, protecting himself from prying eyes and ears and their extensions,
whether form individuals, or much later, from authoritarian intrusions.
Piercing through the mists of time, we find the original Man and Woman defying the injunction of
God by eating of the forbidden fruit in the Garden. And when their eyes were "opened" forthwith
"they sewed fig leaves together, and made themselves aprons."
1
Down the corridors of time, we find
man fashioning "fig leaves" of sorts or setting up figurative walls, the better to insulate themselves from
the rest of humanity.
Such vague stirrings of the desire "to be left alone," considered "anti-social" by some, led to the
development of the concept of "privacy," unheard of among beasts. Different branches of science,
have made their own studies of this craving of the human spirit psychological, anthropological
sociological and philosophical, with the legal finally giving its imprimatur by elevating it to the status
ofa right, specifically a private right.
Initially recognized as an aspect of tort law, it created giant waves in legal circles with the publication
in the Harvard Law Review
2
of the trail-blazing article, "The Right to Privacy," by Samuel D. Warren and
Louis D. Brandeis.
Whether viewed as a personal or a property right, it found its way in Philippine Constitutions and
statutes; this, in spite of the fact that Philippine culture can hardly be said to provide a fertile field for
the burgeoning of said right. In fact, our lexicographers have yet to coin a word for it in the Filipino
language. Customs and practices, being what they have always been, Filipinos think it perfectly
natural and in good taste to inquire into each other's intimate affairs.
One has only to sit through a televised talk show to be convinced that what passes for wholesome
entertainment is actually an invasion into one's private life, leaving the interviewee embarrassed and
outraged by turns.
With the overarching influence of common law and the recent advent of the Information Age with its
high-tech devices, the right to privacy has expanded to embrace its public law aspect. The Bill of
Rights of our evolving Charters, a direct transplant from that of the United States, contains in
essence facets of the right to privacy which constitute limitations on the far-reaching powers of
government.
So terrifying are the possibilities of a law such as Administrative Order No. 308 in making inroads
into the private lives of the citizens, a virtual Big Brother looking over our shoulder, that it must,
without delay, be "slain upon sight" before our society turns totalitarian with each of us, a mindless
robot.
I, therefore, VOTE for the nullification of A.O. No. 308.

VITUG, J ., separate opinion;
One can appreciate the concern expressed by my esteemed colleague, Mr. Justice Reynato S.
Puno, echoing that of the petitioner, the Honorable Blas F. Ople, on the issuance of Administrative
Order No. 308 by the President of the Philippines and the dangers its implementation could bring. I
find it hard, nevertheless, to peremptorily assume at this time that the administrative order will be
misused and to thereby ignore the possible benefits that can be derived from, or the merits of, a
nationwide computerized identification reference system. The great strides and swift advances in
technology render it inescapable that one day we will, at all events, have to face up with the reality of
seeing extremely sophisticated methods of personal identification and any attempt to stop the
inevitable may either be short-lived or even futile. The imperatives, I believe, would instead be to
now install specific safeguards and control measures that may be calculated best to ward-off
probable ill effects of any such device. Here, it may be apropos to recall the pronouncement of this
Court in People vs. Nazario
1
that
As a rule, a statute or [an] act may be said to be vague when it lacks comprehensible
standards that men "of common intelligence must necessarily guess at its meaning
and differ as to its application." It is repugnant to the Constitution in two respects: (1)
it violates due process for failure to accord persons, especially the parties targeted
by it, fair notice of the conduct to avoid; and (2) it leaves law enforcers unbridled
discretion in carrying out its provisions and becomes an arbitrary flexing of the
Government muscle.
2

Administrative Order No. 308 appears to be so extensively drawn that could, indeed, allow
unbridled options to become available to its implementors beyond the reasonable comfort of
the citizens and of residents alike.
Prescinding from the foregoing, and most importantly to this instance, the subject covered by the
questioned administrative order can have far-reaching consequences that can tell on all individuals,
their liberty and privacy, that, to my mind, should make it indispensable and appropriate to have the
matter specifically addressed by the Congress of the Philippines, the policy-making body of our
government, to which the task should initially belong and to which the authority to formulate and
promulgate that policy is constitutionally lodged.
WHEREFORE, I vote for the nullification of Administrative Order No. 308 for being an undue and
impermissible exercise of legislative power by the Executive.

PANGANIBAN, J ., separate opinion;
I concur only in the result and only on the ground that an executive issuance is not legally sufficient
to establish an all-encompassing computerized system of identification in the country. The subject
matter contained in AO 308 is beyond the powers of the President to regulate without a legislative
enactment.
I reserve judgmeht on the issue of wherher a national ID system is an infringement of the
constitutional right to privacy or the freedom of thought until after Congress passes, if ever, a law to
this effect. Only then, and upon the filing of a proper petition, may the provisions of the statute be
scrutinized by the judiciary to determine their constitutional foundation. Until such time, the issue is
premature; and any decision thereon, speculative and academic.
1

Be that as it may, the scholarly discussions of Justices Romero, Puno, Kapunan and Mendoza on
the constitutional right to privacy and freedom of thought may stil become useful guides to our
lawmakers, when and if Congress should deliberate on a bill establishing a national identification
system.
Let it be noted that this Court, as shown by the voting of the justices, has not definitively ruled on
these points. The voting is decisive only on the need for the appropriate legislation, and it is only on
this ground that the petition is granted by this Court.

KAPUNAN, J ., dissenting opinion;
The pioneering efforts of the executive to adopt a national computerized identification reference
system has met fierce opposition. It has spun dark predictions of sinister government ploys to
tamper with the citizen's right to privacy and ominous forecasts of a return to authoritarianism. Lost
in the uproar, however, is the simple fact that there is nothing in the whole breadth and lenght of
Administrative Order No. 308 that suggests a taint constitutional infirmity.
A.O. No. 308 issued by President Fidel V. Ramos on 12 December 1996 reads:
ADMTNISTRATIVE ORDER NO. 308
ADOPTION OF A NATIONAL COMPUTERIZED
IDENTIFICATION REFERENCE SYSTEM
WHEREAS, there is a need to provide Filipino citizens and foreign residents with the
facility to conveniently transact business with basic services and social security
providers and other government instrumentalities;
WHEREAS, this will require a computerized system to properly and efficiently identify
persons seeking basic services and social security and reduce, if not totally
eradicate, fraudulent transactions and misrepresentations;
WHEREAS, a concerted and collaborative effort among the various basic services
and social security providing agencies and other government instrumentalities is
required to achieve such a system;
NOW, THEREFORE, I, FIDEL V. RAMOS, President of the Repubic of the
Philippines, by virtue of the powers vested in me by law, do hereby direct the
following:
Sec. 1 Establishment of a National Computerized Identification Reference System. A
decentralized Identification Reference System among the key basic services and
social security providers is hereby established.
Sec. 2. Inter-Agency Coordinating Committee. An Inter-Agency Coordinating
Committee (IACC) to draw-up the implementing guidelines and oversee the
implementation of the System is hereby created, chaired by the Executive Secretary,
with the following as members:
Head Presidential Management Staff
Secretary, National Economic Development Authority
Secretary, Department of the Interior and Local Government
Secretary, Department of Health
Administrator, Government Service Insurance System
Administrator, Social Security System
Administrator, National Statistics Office
Managing Director, National Computer Center
Sec. 3. Secretariat. The National Computer Center (NCC) is hereby designated as
secretariat to the IACC and as such shall provide administrative and technical
support to the IACC.
Sec. 4. Linkage Among Agencies. The Population Reference Number (PRN)
generated by the NSO shall serve as the common reference number to establish a
linkage among concerned agencies. The IACC Secretariat shall coordinate with the
different Social Security and Services Agencies to establish the standards in the use
of Biometrics Technology and in computer application designs of their respective
systems.
Sec. 5. Conduct of Information Dissemination Campaign. The Office of the Press
Secretary, in coordination with the National Statistics Offices, the GSIS and SSS as
lead agencies and other concerned agencies shall undertake a massive tri-media
information dissemination campaign to educate and raise public awareness on the
importance and use of the PRN and the Social Security Identification Reference.
Sec. 6. Funding. The funds necessary for the implementation of the system shall be
sourced from the respective budgets of the concerned agencies.
Sec. 7. Submission of Regular Reports. The NSO, GSIS and SSS shall submit
regular reports to the Office of the President, through the IACC, on the status of
implementation of this undertaking.
Sec. 8 Effectivity. This Administartive Order shall take effect immediately.
DONE in the City of Manila, this 12th day of December in the year of Our Lord,
Nineteen Hundred and Ninety-Six.
In seeking to strike down A.O. No. 308 as unconstitutional, petitioner argues:
A. THE ESTABLISHMENT OF NATIONAL COMPUTERIZED IDENTIFICATION
REFERENCE SYSTEM REQUIRES A LEGISLATIVE ACT. THE ISSUACE OF A.O.
NO. 308 BY THE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES IS,
THEREFORE, AN UNCONSTITUTIONAL USURPATION OF THE LEGISLATIVE
POWERS OF THE CONGRESS OF THE REPUBLIC OF THE PHILIPPINES.
B. THE APPROPRIATION OF PUBLIC FUNDS BY THE PRESIDENT FOR THE
IMPLEMENTATION OF A.O. NO. 308 IS AN UNCONSTITUTIONAL USURPATION
OF THE EXCLUSIVE RIGHT OF CONGRESS TO APPROPRIATE PUBLIC FUNDS
FOR EXPENDITURE.
C. THE IMPLEMENTATION OF A.O. NO. 308 INSIDIOUSLY LAYS THE
GROUNDWORK FOR A SYSTEM WHICH WILL VIOLATE THE BILL OF RIGHTS
ENSHRINED IN THE CONSTITUTION.
The National Computerized Identification Reference system to which the NSO, GSIS and SSS are
linked as lead members of the IACC is intended to establish uniform standards for ID cards isssued
by key government agencies (like the SSS)
1
for the "efficient identification of persons."
2
Under the new
system, only one reliable and tamper-proof I.D. need be presented by the cardholder instead of several
identification papers such as passports and driver's license,
3
to able to transact with government
agencies. The improved ID can be used to facilitate public transactions such as:
1. Payment of SSS and GSIS benefits
2. Applications for driver's license, BIR TIN, passport, marriage
license, death certificate, NBI and police clearances, and business
permits
3. Availment of Medicare services in hospitals
4. Availment of welfare services
5. Application for work/employment
6. Pre-requisite for Voter's ID.
4

The card may also be used for private transactions such as:
1. Opening of bank accounts
2. Encashment of checks
3. Applications for loans, credit cards, water, power, telephones,
pagers, etc.
4. Purchase of stocks
5. Application for work/employment
6. Insurance claims
7. Receipt of payments, checks, letters, valuables, etc.
5

The new identification system would tremendously improve and uplift public service in our country to
the benefit of Filipino citizens and resident aliens. It would promote, facilitate and speed up
legitimate transactions with government offices as well as with private and business entities.
Experience tells us of the constant delays and inconveniences the public has to suffer in availing of
basic public services and social security benefits because of inefficient and not too reliable means of
identification of the beneficiaries.
Thus, in the "Primer on the Social Security Card and Administrative Order No. 308" issued by the
SSS, a lead agency in the implementation of the said order, the following salient features are
mentioned:
1. A.O. 308 merely establishes the standards for I.D. cards issued by key
government agencies such as SSS and GSIS.
2. It does not establish a national I.D. system neither does it require a national I.D.
card for every person.
3. The use of the I.D. is voluntary.
4. The I.D. is not required for delivery of any government service. Everyone has the
right to basic government services as long as he is qualified under existing laws.
5. The LD. cannot and will not in any way be used to prevent one to travel.
6. There will be no discrimination Non-holders of the improved I.D. are still entitled to
the same services but will be subjected to the usual rigid identification and
verification beforehand.
I
The issue that must first be hurdled is: was the issuance of A.O. No. 308 an exercise by the
President of legislative power properly belonging to Congress?
It is not.
The Administrative Code of 1987 has unequivocally vested the President with quasi-legislative
powers in the form of executive orders, administrative orders, proclamations, memorandum orders
and circulars and general or special orders.
6
An administrative order, like the one under which the new
identification system is embodied, has its peculiar meaning under the 1987 Administrative Code:
Sec. 3. Administrative Orders. Acts of the President which relate to particular
aspects of governmental operations in pursuance of his duties as administrative
head shall be promulgated in administrative orders.
The National Computerized Identification Reference System was established pursuant to the
aforaquoted provision precisely because its principal purpose, as expressly stated in the order, is to
provide the people with "the facility to conveniently transact business" with the various government
agencies providing basic services. Being the "administrative head," it is unquestionably the
responsibility of the President to find ways and means to improve the government bureaucracy, and
make it more professional, efficient and reliable, specially those government agencies and
instrumentalities which provide basic services and which the citizenry constantly transact with, like
the Government Service Insurance System (GSIS), Social Security System (SSS) and National
Statistics Office (NSO). The national computerized ID system is one such advancement. To
emphasize, the new identification reference system is created to streamline the bureaucracy, cut the
red tape and ultimately achieve administrative efficiency. The project, therefore, relates to, is an
appropriate subject and falls squarely within the ambit of the Chief Executive's administrative power
under which, in order to successfully carry out his administrative duties, he has been granted by law
quasi-legislative powers, quoted above.
Understandably, strict adherence to the doctrine of separation of power spawns differences of
opinion. For we cannot divide the branches of government into water-tight compartment. Even if
such is possible, it is neither desirable nor feasible. Bernard Schwartz, in his work Administrative
Law, A Casebook, thus states:
To be sure, if we think of the separation of powers as carrying out the distinction
between legislation and administration with mathematical precision and as dividing
the branches of government into watertight compartments, we would probably have
to conclude that any exercise of lawmaking authority by an agency is automatically
invalid. Such a rigorous application of the constitutional doctrine is neither desirable
nor feasible; the only absolute separation that has ever been possible was that in the
theoretical writings of a Montesquieu, who looked across at foggy England from his
sunny Gascon vineyards and completely misconstrued what he saw.
7

A mingling of powers among the three branches of government is not a novel concept. This blending
of powers has become necessary to properly address the complexities brought about by a rapidly
developing society and which the traditional branches of government have difficulty coping with.
8

It has been said that:
The true meaning of the general doctrine of the separation of powers seems to be
that the whole power of one department should not be exercised by the same hands
which possess the whole power of either of the other department, and that no one
department ought to possess directly or indirectly an overruling influence over the
others. And it has been that this doctrine should be applied only to the powers which
because of their nature are assigned by the constitution itself to one of the
departments exclusively. Hence, it does not necessarily follow that an entire and
complete separation is either desirable of was ever intended, for such a complete
separation would be impracticable if not impossible; there may be-and frequently are-
areas in which executive, legislative, and judicial powers blend or overlap; and many
officers whose duties cannot be exclusively placed under any one of these heads.
The courts have perceived the necessity of avoiding a narrow construction of a state
constitutional provision for the division of the powers of the government into three
distinct departments, for it is impractical to view the provision from the standpoint of a
doctrinaire. Thus, the modern view of separation of powers rejects the metaphysical
abstractions and reverts instead to more pragmatic, flexible, functional approach,
giving recognition to the fact that then may be a certain degree of blending or
admixture of the three powers of the government. Moreover, the doctrine of
separation of powers has never been strictly or rigidly applied, and indeed could not
be, to all the ramifications of state or national governments; government would prove
abortive if it were attempted to follow the policy of separation to the letter.
9

In any case A.O. No. 308 was promulgated by the President pursuant to the quasi-legislative powers
expressly granted to him by law and in accordance with his duty as administrative head. Hence, the
contention that the President usurped the legislative prerogatives of Congress has no firm basis.
II
Having resolved that the President has the authority and prerogative to issue A.O. No. 308, I submit
that it is premature for the Court to determine the constitutionality or unconstitutionality of the
National Computerized Identification Reference System.
Basic in constitutional law is the rule that before the court assumes jurisdiction over and decide
constitutional issues, the following requisites must first be satisfied:
1) there must be an actual case or controversy involving a conflict of rights susceptible of judicial
determination;
2) the constitutional question must be raised by a proper party;
3) the constitutional question must be raised at the earliest opportunity; and
4) the resolution of the constitutional question must be necessary to the resolution of the case.
10

In this case, it is evident that the first element is missing. Judicial intervention calls for an actual case
or controversy which is defined as "an existing case or controversy that is appropriate or ripe for
determination, not conjectural or anticipatory."
11
Justice Isagani A. Cruz further expounds that "(a)
justifiable controversy is thus distinguished from a difference or dispute of a hypothetical or abstract
character or from one that is academic or moot. The controversy must be definite and concrete, touching
the legal relations of parties having adverse legal interests. It must be a real and substantial controversy
admitting of special relief through a decree that is conclusive in character, as distinguished from an
opinion advising what the law would be upon a hypothetical state of facts. . . ."
12
A.O. No. 308 does not
create any concrete or substantial controversy. It provides the general framework of the National
Computerized Identification Reference System and lays down the basic standards (efficiency,
convenience and prevention of fraudulent transactions) for its cretion. But as manifestly indicated in the
subject order, it is the Inter-Agency Coordinating Committee (IACC) which is tasked to research, study
and formulate the guidelines and parameters for the use of Biometrics Technology and in computer
application designs that will and define give substance to the new system.
13
This petition is, thus,
premature considering that the IACC is still in the process of doing the leg work and has yet to codify and
formalize the details of the new system.
The majority opines that the petition is ripe for adjudication even without the promulgation of the
necessary guidelines in view of the fact that respondents have begun implementation of A.O. No.
308. The SSS, in particular, has started advertising in newspapers the invitation to bid for the
production of the I.D. cards.
14

I beg to disagree. It is not the new system itself that is intended to be implemented in the invitation to
bid but only the manufacture of the I.D. cards. Biometrics Technology is not and cannot be used in
the I.D. cards as no guidelines therefor have yet been laid down by the IACC. Before the assailed
system can be set up, it is imperative that the guidelines be issued first.
III
Without the essential guidelines, the principal contention for invalidating the new identification
reference system that it is an impermissible encroachment on the constitutionally recognized right
to privacy is plainly groundless. There is nothing in A.O. No. 308 to serve as sufficient basis for a
conclusion that the new system to be evolved violates the right to privacy. Said order simply
provides the system's general framework. Without the concomitant guidelines, which would spell out
in detail how this new identification system would work, the perceived violation of the right to privacy
amounts to nothing more than mere surmise and speculation.
What has caused much of the hysteria over the National Computerized Identification Reference
System is the possible utilization of Biometrics Technology which refers to the use of autnomated
matching of physiological or behavioral characteristics to identify a person that would violated the
citizen's constitutionally protected right to privacy.
The majority opinion has enumerated various forms and methods of Biometrics Technology which if
adopted in the National Computaized Identification Reference System would seriously threaten the
right to privacy. Among which are biocrypt retinal scan, artificial nose and thermogram. The majority
also points to certain alleged deficiencies of A O. No. 308. Thus:
1) A.O. No. 308 does not specify the particular Biometrics Technology that shall be
used for the new identification system.
2) The order dots not state whether encoding of data is limited to biological
information alone for identification purposes;
3) There is no provision as to who shall control and access the data, under what
circumstances and for what purpose; and
4) There are no controls to guard against leakage of information, thus heightening
the potential for misuse and abuse.
We should not be overwhelmed by the mere mention of the Biometrics Technology and its alleged,
yet unfounded "far-reaching effects."
There is nothing in A.O. No. 308, as it is worded, to suggest that the advanced methods of the
Biometrics Technology that may pose danger to the right of privacy will be adopted.
The standards set in A.O. No. 308 for the adoption of the new system are clear-cut and
unequivocably spelled out in the "WHEREASES" and body of the order, namely, the need to provide
citizens and foreign residents with the facility to conveniently transact business with basic
service and social security providers and other government instrumentalities; the computerized
system is intended to properly and efficiently identify persons seeking basic services or social
security and reduce, if not totally eradicate fraudulent transactions and misreprentation; the national
identification reference system is established among the key basic services and social security
providers; and finally, the IACC Secretariat shall coordinate with different Social Security and
Services Agencies to establish the standards in the use of Biometrics Technology. Consequently,
the choice of the particular form and extent of Biometrics Technology that will be applied and the
parameters for its use (as will be defined in the guidelines) will necessarily and logically be guided,
limited and circumscribed by the afore-stated standards. The fear entertained by the majority on the
potential dangers of this new technology is thus securedly allayed by the specific limitations set by
the above-mentioned standards. More than this, the right to privacy is well-esconced in and directly
protected by various provisions of the Bill of Rights, the Civil Code, the Revised Penal Code, and
certain laws, all so painstakingly and resourcefully catalogued in the majority opinion. Many of these
laws provide penalties for their violation in the form of imprisonment, fines, or damages. These laws
will serve as powerful deterrents not only in the establishment of any administrative rule that will
violate the constitutionally protected right to privacy, but also to would-be transgressors of such right.
Relevant to this case is the ruling of the U.S. Supreme Court in Whalen v. Roe.
15
In that case, a New
York statute was challenged for requiring physicians to identify patients obtaining prescription drugs of the
statute's "Schedule II" category (a class of drugs having a potential for abuse and a recognized medical
use) so the names and addresses of the prescription drug patients can be recorded in a centralized
computer file maintained by the New York State Department of Health. Some patients regularly receiving
prescription for "Schedule II" drugs and doctors who prescribed such drugs brought an action questioning
the validity of the statute on the ground that it violated the plaintiffs' constitutionally protected rights of
privacy.
In a unanimous decision, the US Supreme Court sustained the validity of the statute on the ground
that the patient identification requirement is a reasonable exercise of the State's broad police
powers. The Court also held that there is no support in the record for an assumption that the security
provisions of the statute will be adiministered improperly. Finally, the Court opined that the remote
possibility that judicial supervision of the evidentiary use of particular items of stored information will
not provide adequate protection against unwarranted diclosures is not a sufficient reason for
invalidating the patient-identification program.
To be sure, there is always a possibility of an unwarranted disclosure of confidential matters
enomously accumulated in computerized data banks and in government records relating to taxes,
public health, social security benefits, military affairs, and similar matters. But as previously pointed
out, we have a sufficient number of laws prohibiting and punishing any such unwarranted
disclosures. Anent this matter, the observation in Whalen vs. Roe is instructive:
. . . We are not unaware of the threat to privacy implicit in the accumulation of vast
amounts of personal information in computerized data banks or other massive
government files. The collection of taxes, the distribution of welfare and social
security benefits, the supervision of public health, the direction of our Armed Forces
and the enforcement of the criminal laws all require the orderly preservation of great
quantities of information, much of which is personal in character and potentially
embarrassing or harmful if disclosed. The right to collect and use such data for public
purposes is typically accompanied by a concomitant statutory or regulatory duty to
avoid unwarranted disclosures. . . .
16

The majority laments that as technology advances, the level of reasonably expected privacy
decreases. That may be true. However, court should tread daintily on the field of social and
economic experimentation lest they impede or obstruct the march of technology to improve public
services just on the basis of an unfounded fear that the experimentation violates one's
constitutionally protected rights. In the sobering words of Mr. Justice Brandeis:
To stay experimentation in things social and economic is a grave responsibility.
Denial of the right to experiment may be fraught with serious consequences to the
Nation. It is one of the happy incidents of the federal system that a single courageous
State may, if its citizens choose, serve as a laboratory; and try novel social and
economic experiments without risk to the rest of the country. This Court has the
power to prevent an experiment. We may strike down the statute which embodies it
on the ground that, in our opinion, the measure is arbitary, capricious or
unreaonable. We have power to do this, because the due process clause has been
held by he Court applicable to matters of substantive law as well as to matters of
procedure. But in the exercise of this high power, we must be ever on our guard, lest
we erect our prejudices into legal principles. If we would guide by the light of reason,
we must let our minds be bold.
17

Again, the concerns of the majority are premature precisely because there are as yet no guidelines
that will direct the Court and serve as solid basis for determining the constitutionality of the new
identification system. The Court cannot and should not anticipate the constitutional issues and rule
on the basis of guesswok. The guidelines would, among others, determine the particular biometrics
method that would be used and the specific personal data that would be collected provide the
safeguard, (if any) and supply the details on how this new system in supposed to work. The Court
should not jump the gun on the Executive.
III
On the issue of funding, the majority submits that Section 6 of A.O. No. 308, which allows the
government agencies included in the new system to obtain funding form their respective budgets, is
unconstitutional for being an illegal transfer of appropriations.
It is not so. The budget for the national identification system cannot be deemed a transfer of funds
since the same is composed of and will be implemented by the member government agancies.
Morever, thses agencies particularly the GSIS and SSS have been issuing some form of
identification or membership card. The improved ID cards that will be issued under this new system
would just take place of the old identification cards and budget-wise, the funds that were being used
to manufacture the old ID cards, which are usually accounted for under the "Supplies and Materials"
item of the Government Accounting and Auditing Manual, could now be utilized to fund the new
cards. Hence, what is envisioned is not transfer of appropriations but a pooling of funds and
resources by the various government agencies involved in the project.
WHEREFORE, I vote to dismiss the petition.

MENDOZA, J ., separate opinion;
My vote is to dismiss the petition in this case.
First. I cannot find anything in the text of Administrative Order No. 308 of the President of the
Philippines that would warrant a declaration that it is violative of the right of privacy. So far as I can
see, all the Administrative Orders does is
establish an Identification Reference System involving the following service
agencies of the government:
Presidential Management Staff
National Economic Developemnt Authority
Department of the Interior and Local Government
Department of Health
Government Service Isurance System
Social Security Office
National Computer Center
create a committee, composed of the heads of the agencies concerned, to
draft rules for the System;
direct the use of the Population Reference Number (PRN) generated by the
National Census and Statistics Office as the common reference number to
link the participating agencies into an Identification Reference System, and
the adoption by the agencies of standards in the use of biometrics technology
and computer designs; and
provide for the funding of the System from the budgets of the agencies
concerned.
Petitioner argues, however, that "the implementation of A.O. No. 308 will mean that each and every
Filipino and resident will have a file with the government containing, at the very least, his PRN and
physiological biometrics such as, but not limited to, his facial features, hand geometry, retinal or iris
pattern, DNA pattern, fingerprints, voice characteristics, and signature analysis."
In support of his contention, petitioner quotes the following publication surfed from the Internet:
The use of biometrics is the means by which an individual may be conclusively
identified. There are two types of biometrics identifiers; Physical and behavioral
characteristics, Physiological biometrics include facial features, hand geometry,
retinal and iris patterns. DNA, and fingerprints characteristics include voice
characteristics and signature analysis.
1

I do not see how from the bare provisions of the Order, the full text of which is set forth in the
majority opinion, petitioner and the majority can conclude that the Identification Reference System
establishes such comprehensive personal information dossiers that can destroy individual privacy.
So far as the Order provides, all that is contemplated is an identification system based on data which
the government agencies involved have already been requiring individuals making use of their
services to give.
For example, under C.A. No. 591, 2(a) the National Statistics Office collects "by enumeration,
sampling or other methods, statistics and other information concerning population . . . social and
economic institutions, and such other statistics as the President may direct." In addition, it is in
charge of the administration of the Civil Register,
2
which means that it keeps records of information
concerning the civil status of persons, i.e., (a) births, (b) deaths, (c) marriages and their annulments; (d)
legitimations, (e) adoptions, (f) acknowledgments of natural children, (g) naturalizations, and (h) changes
of name.
3

Other statutes giving government agencies the power to require personal information may be cited.
R.A. No. 4136, 23 gives the Land Transportation Office the power to require applicants for a
driver's license to give information regarding the following: their full names, date of birth, height,
weight, sex, color of eyes, blood type, address, and right thumbprint;
4
while R.A. No. 8239, 5 gives
the Department of Foreign Affairs the power to require passport applicants to give information concerning
their names, place of birth, date of birth, religious affiliation, marital status, and citizenship.
Justice Romero, tracing the origin of privacy to the attempt of the first man and woman to cover their
nakedness with fig leaves, bemoans the fact that technology and institutional pressures have
threatened our sense of privacy. On the other hand, the majority would have none of the
Identification Reference System "to prevent the shrinking of the right to privacy, once regarded as
"the most comprehensive of rights and the right most valued by civilized men.""
5
Indeed, techniques
such as fingerprinting or electronic photography in banks have become commonplace. As has been
observed, the teaching hospital has come to be accepted as offering madical services that compensate
for the loss of the isolation of the sickbed; the increased capacity of applied sciences to utilize more and
more kinds of data and the cosequent calls for such data have weakened traditional resistance to
disclosure. As the area of relevance, political or scientific, expands, there is strong psychological pressure
to yield some ground of privacy.
6

But this is a fact of life to which we must adjust, as long as the intrusion into the domain of privacy is
reasonable. InMorfe v. Mutuc,
7
this Court dealt the coup de grace to claims of latitudinarian scope for
the right of privacy by quoting the pungent remark of an acute observer of the social scene, Carmen
Guerrero-Nakpil:
Privacy? What's that? There is no precise word for it in Filipino, and as far as I know
any Filipino dialect and there is none because there is no need for it. The concept
and practice of privacy are missing from conventional Filipino life. The Filipino
believes that privacy is an unnecessary imposition, an eccentricity that is barely
pardonable or, at best, an esoteric Western afterthought smacking of legal trickery.
8

Justice Romero herself says in her separate opinion that the word privacy is not even in the
lexicon of Filipinos.
As to whether the right of privacy is "the most valued right," we do well to remember the encomiums
paid as well to other constitutional rights. For Professor Zechariah Chafee, "The writ of habeas
corpus is "the most important human rights provision in the fundamental law,""
9
For Justice Cardozo,
on the other hand, freedom of expression "is the matrix, the indispensable condition of nearly every other
form of freedom."
10

The point is that care must be taken in assigning values to constitutional rights for the purpose of
calibrating them on the judicial scale, especially if this means employing stricter standards of review
for regulations alleged to infringe certain rights deemed to be "most valued by civilized men.''
Indeed, the majority concedes that "the right of privacy does not bar all incursions into individual
privacy . . . [only that such] incursions into the right must be accompanied by proper safeguards and
well-defined standards to prevent unconstitutional invasions."
11
In the case of the Identification
Reference System, the purpose is to facilitate the transaction of business with service agencies of the
government and to prevent fraud and misrepresentation. The personal identification of an individual can
facilitate his treatment in any government hospital in case of emergency. On the other hand, the delivery
of material assistance, such as free medicines, can be protected from fraud or misrepresentation as the
absence of a data base makes it possible for unscrupulous individuals to obtain assistance from more
than one government agency.
Second. Thus, the issue in this case is not really whether A.O. No. 308 violates the right of privacy
formed by emanations from the several constitutional rights cited by the majority.
12
The question is
whether it violates freedom of thought and of conscience guaranteed in the following provisions of our Bill
of Rights (Art. III):
Sec. 4. No law Shall be passed abridging the freedom of speech, of expression, or of
the press, or the right of the people peaceably to assemble and petition the
government for redress of grievances.
Sec. 5. No law shall be made respecting an establishment of religion, or prohibiting
the free exercise thereof. The free exercise enjoyment of religious profession and
worship, without discrimination or preference, shall be forever be allowed. No
religious test shall be required for the exercise of civil or political rights.
More specifically, the question is whether the establishment of the Identification Reference System
will not result in the compilation of massive dossiers on individuals which, beyond their use for
identification, can become instruments of thought control. So far, the next of A.O. No. 308 affords no
basis for believing that the data gathered can be used for such sinister purpose. As already stated,
nothing that is not already being required by the concerned agencies of those making use of their
servides is required by the Order in question. The Order simply organizes service agencies of the
government into a System for the purpose of facilitating the identification of persons seeking basic
services and social security. Thus, the whereas clauses of A.O. No. 308 state:
WHEREAS, there is a need to provide Filipino citizens and foreign residents with the
facility to conveniently transact business with basic services and social security
providers and other government instrumentalities;
WHEREAS, this will require a computerized system to properly and efficiently identify
persons seeking basic services and social security, and reduce, if not totally
eradicate, fraudulent transactions and misrepresentations;
WHEREAS, a concerted and collaborative effort among the various basic services
and social security providing agencies and other government instrumentalities is
required to achieve such a system:
The application of biometric technology and the standardization of computer designs can
provide service agencies with precise identification of individuals, but what is wrong with
that?
Indeed, A.O. No. 308 is no more than a directive to government agencies which the President of the
Philippines has issued in his capacity as administrative head.
13
It is not a statute. It confers no right; it
imposes no duty; it affords no protection; it creates no office.
14
It is, as its name indicates, a mere
administrative order, the prescise nature of which is given in the following excerpt from the decision in the
early case of Olsen & Co. v. Herstein:
15

[It] is nothing more or less than a command from a superior to an inferior. It creates
no relation except between the official who issues it and the official who receives it.
Such orders, whether executive or departmental, have for their object simply the
efficient and economical administration of the affairs of the department to which or in
which they are issued in accordance with the law governing the subject-matter. They
are administrative in their nature and do not pass beyond the limits of the department
to which they are directed or in which they are published, and, therefore, create no
rights in third persons.They are based on, and are the product of a relationship in
which power is their source and obedience their object. Disobedience to or deviation
from such an order can be punished only by the power which issued it: and, if that
power fails to administer the corrective, then the disobedience goes unpunished.In
that relationship no third person or official may intervene, not even the court. Such
orders may be very temporary, they being subject to instant revocation or
modification by the power which published them. Their very nature, as determined by
the relationship which prodecued them, demonstrates clearly the impossibility of any
other person enforcing them except the one who created them. An attempt on the
part of the courts to enforce such orders would result not only in confusion but,
substantially, in departmental anarchy also.
16

Third. There is no basis for believing that, beyond the identification of individuals, the System will be
used for illegal purposes. Nor are sanctions lacking for the unauthorized use or disclosure of
information gathered by the various agencies constituting the System. For example, as the Solicitor
General points out. C.A. No. 591. 4 penalizes the unauthorized use or disclosure of data furnished
the NSO with a fine of not more than P600.00 or imprisonment for not more than six months or both.
At all events, at this stage, it is premature to pass on the claim that the Identification Reference
System can be used for the purpose of compiling massive dossiers on individuals that can be used
to curtail basic civil and political rights since, if at all, this can only be provided in the implementing
rules and regulations which have yet to be promulgated. We have already stated that A.O. No. 308
is not a statute. Even in the case of statutes, however, where implementing rules are necessary to
put them into effect, it has been held that an attack on their constitutionality would be
premature.
17
As Edgar in King Lear puts it, "Ripeness is all."
18
For, to borrow some more
Shakespearean lines,
The canker galls the infants of the spring
Too oft before their buttons be disclos'd.
19

That, more than any doctrine of constitutional law I can think of, succinctly expresses the rule
on ripeness, prematurity, and hypothetical, speculative, or conjectural claims.
Of special relevance to this case is Laird v. Tatum.
20
There, a class suit was brought seeking
declaratory and injunctive relief on the claim that a U.S. Army intelligence surveillance of civilian political
activity having "a potential for civil disorder" exercised "a present inhibiting effect on [respondents'] full
expression and utilization of their First Amendment rights." In holding the case nonjusticiable, the U.S.
Supreme Court, in an opinion by Chief Justice Burger. said:
21

In recent years this Court has found in a number of cases that constitutional
violations may arise from the deterrent or ''chilling," effect of governmental
regulations that fall short of a direct prohibition against the exercise of First
Amendment rights. [Citation of cases omitted] In none of these cases, however, did
the chilling effect arise merely from the individual's knowledge that a governmental
agency was engaged in certain activities or from the individual's concomitant fear
that, armed with the fruits of those activities, the agency might in the future take
some other and additional action detrimental to that individual. Rather, in each of
these cases, the challenged exercise of governmental power was regulatory,
proscriptive, or compulsory in nature, and the complainant was either presently or
prospectively subject to the regulations, proscriptions, or compulsions that he was
challenging. . . .
[T]hese decisions have in no way eroded the "established principle that to entitle a
private individual to invoke the judicial power to determine the validity of executive or
legislative action he must show that he was sustained or is immediately in danger of
sustaining a direct injury as the result of that action. . . .
The respondents do not meet this test; [the] alleged "chilling" effect may perhaps be
seen as arising from respondents' perception of the system as inappropriate to the
Army's role under our form of government, or as arising from respondents' beliefs
that it is inherently dangerous for the military to be concerned with activities in the
civilian sector, or as arising from respondents' less generalized yet speculative
apprehensiveness that the Army may at some future date misuse the information in
some way that would cause direct harm to respondents. Allegations of a subjective
"chill" are not an adequate substitute for a claim of specific present objective harm or
a threat of specific future harm: "the federal courts established pursuant to Article III
of the Constitution do not render advisory opinions." United Public Workers v.
Mitchell, 330 US 75, 89, 91 L Ed 754, 766, 67 S Ct 556 (1947).
Fourth. Given the fact that no right of privacy is involved in this case and that any objection to the
identification Reference System on the ground that it violates freedom of thought is premature,
speculative, or conjectural pending the issuance of the implementing rules, it is clear that petitioner
Blas F. Ople has no cause of action and, therefore, no standing to bring this action. Indeed, although
he assails A.O. No. 308 on the ground that it violates the right of privacy, he claims no personal
injury suffered as a result of the Order in question. Instead, he says he is bringing this action as
taxpayer, Senator, and member of the Government Service Insurance System.
Insofar as petitioner claims an interest as taxpayer, it is sufficient to say that A.O. No. 308 does not
involve the exercise of the taxing or spending power of the government.
Insofar as he purports to sue as a member of the GSIS, neither does petitioner have an intertest
sufficient to enable him to litigate a constitutional question. Petitioner claims that in providing that the
funds necessary for implementing the System shall be taken from the budgets of the concerned
agencies. A.O. No. 308 violates Art. VI, 25(5) which. provides:
No law shall be passed authorizing any transfer of appropriations; however, the
President, the President of the Senate, the Speaker of the House of Representatives,
the Chief Justice of the Supreme Court, and the heads of Constitutional
Commissions may, by law, be authorized to augment any item in the general
appropriations law for their respective offices from savings in other items of their
respective appropriations.
But, as the Solicitor General states:
Petitioner's argument is anchored on two erroneous assumptions: one, that all the
concerned agencies, including the SSS and the GSIS, receive budgetary support
from the national government; and two, that the GAA is the only law whereby public
funds are appropriated. Both assumptions are wrong.
The SSS and GSIS do not presently receive budgetary support from the National
Government. They have achieved self-supporting status such that the contributions
of their members are sufficient to finance their expenses. One would be hard pressed
to find in the GAA an appropriation of funds to the SSS and the GSIS.
Furthermore, their respective charters authorize the SSS and the GSIS to disburse
their funds (Rep. Act No. 1161 [1954], as amended, Sec. 25; Pres. Decree No. 1146
[1977], as amended, Sec. 29) without the need for a separate appropriation from the
Congress.
Nor as Senator can petitioner claim standing since no power of Congress is alleged to have been
impaired by the Administrative Order in question.
22
As already stated, in issuing A.O. No. 308, the
President did not exercise the legislative power vested by the Constitution in Congress. He acted on the
basis of his own powers as administrative head of the government, as distinguished from his capacity as
the Executive. Dean Sinco elucidates the crucial distinction thus:
The Constitution of the Philippines makes the President not only the executive but
also the administrative head of the government. . . . Executive power refers to the
legal and political function of the President involving the exercise of discretion.
Administrative power, on the other hand, concerns itself with the work of applying
policies and enforcing orders as determined by proper governmental organs. These
two functions are often confused by the public: but they are distinct from each other.
The President as the executive authority has the duty of supervising the enforcement
of laws for the maintenance of general peace and public order. As administrative
head, his duty is to see that every government office is managed and maintained
properly by the persons in charge of it in accordance with pertinent laws and
regulations.
. . . The power of control vested in him by the Constitution makes for a strongly
centralized administrative system. It reinforces further his position as the executive of
the government, enabling him to comply more effectively with his constitutional duty
to enforce the laws. It enables him to fix a uniform standard of a administrative
eficiency and to check the official conduct of his agents. The decisions of all the
officers within his department are subject to his power of revision, either on his own
motion or on the appeal of some individual who might deem himself aggrieved by the
action of an administrative official. In case of serious dereliction of duty, he may
suspend or remove the officials concerned.
23

For the foregoing reasons, the petition should be DISMISSED.
G.R. No. L-45685 November 16, 1937
THE PEOPLE OF THE PHILIPPINE ISLANDS and HONGKONG & SHANGHAI BANKING
CORPORATION,petitioners,
vs.
JOSE O. VERA, Judge . of the Court of First Instance of Manila, and MARIANO CU
UNJIENG, respondents.
Office of the Solicitor General Tuason and City Fiscal Diaz for the Government.
De Witt, Perkins and Ponce Enrile for the Hongkong and Shanghai Banking Corporation.
Vicente J. Francisco, Feria and La O, Orense and Belmonte, and Gibbs and McDonough for
respondent Cu Unjieng.
No appearance for respondent Judge.

LAUREL, J .:
This is an original action instituted in this court on August 19, 1937, for the issuance of the writ
of certiorari and of prohibition to the Court of First Instance of Manila so that this court may review
the actuations of the aforesaid Court of First Instance in criminal case No. 42649 entitled "The
People of the Philippine Islands vs. Mariano Cu Unjieng, et al.", more particularly the application of
the defendant Mariano Cu Unjieng therein for probation under the provisions of Act No. 4221, and
thereafter prohibit the said Court of First Instance from taking any further action or entertaining
further the aforementioned application for probation, to the end that the defendant Mariano Cu
Unjieng may be forthwith committed to prison in accordance with the final judgment of conviction
rendered by this court in said case (G. R. No. 41200). 1
Petitioners herein, the People of the Philippine and the Hongkong and Shanghai Banking
Corporation, are respectively the plaintiff and the offended party, and the respondent herein Mariano
Cu Unjieng is one of the defendants, in the criminal case entitled "The People of the Philippine
Islands vs. Mariano Cu Unjieng, et al.", criminal case No. 42649 of the Court of First Instance of
Manila and G.R. No. 41200 of this court. Respondent herein, Hon. Jose O. Vera, is the Judge ad
interim of the seventh branch of the Court of First Instance of Manila, who heard the application of
the defendant Mariano Cu Unjieng for probation in the aforesaid criminal case.
The information in the aforesaid criminal case was filed with the Court of First Instance of Manila on
October 15, 1931, petitioner herein Hongkong and Shanghai Banking Corporation intervening in the
case as private prosecutor. After a protracted trial unparalleled in the annals of Philippine
jurisprudence both in the length of time spent by the court as well as in the volume in the testimony
and the bulk of the exhibits presented, the Court of First Instance of Manila, on January 8, 1934,
rendered a judgment of conviction sentencing the defendant Mariano Cu Unjieng to indeterminate
penalty ranging from four years and two months of prision correccional to eight years of prision
mayor, to pay the costs and with reservation of civil action to the offended party, the Hongkong and
Shanghai Banking Corporation. Upon appeal, the court, on March 26, 1935, modified the sentence
to an indeterminate penalty of from five years and six months of prision correccional to seven years,
six months and twenty-seven days ofprision mayor, but affirmed the judgment in all other respects.
Mariano Cu Unjieng filed a motion for reconsideration and four successive motions for new trial
which were denied on December 17, 1935, and final judgment was accordingly entered on
December 18, 1935. The defendant thereupon sought to have the case elevated oncertiorari to the
Supreme Court of the United States but the latter denied the petition
for certiorari in November, 1936. This court, on November 24, 1936, denied the
petition subsequently filed by the defendant for leave to file a second alternative motion for
reconsideration or new trial and thereafter remanded the case to the court of origin for execution of
the judgment.
The instant proceedings have to do with the application for probation filed by the herein respondent
Mariano Cu Unjieng on November 27, 1936, before the trial court, under the provisions of Act
No. 4221 of the defunct Philippine Legislature. Herein respondent Mariano Cu Unjieng states in his
petition, inter alia, that he is innocent of the crime of which he was convicted, that he has no criminal
record and that he would observe good conduct in the future. The Court of First Instance of Manila,
Judge Pedro Tuason presiding, referred the application for probation of the Insular Probation Office
which recommended denial of the same June 18, 1937. Thereafter, the Court of First Instance of
Manila, seventh branch, Judge Jose O. Vera presiding, set the petition for hearing on April 5, 1937.
On April 2, 1937, the Fiscal of the City of Manila filed an opposition to the granting of probation to the
herein respondent Mariano Cu Unjieng. The private prosecution also filed an opposition on April 5,
1937, alleging, among other things, that Act No. 4221, assuming that it has not been repealed by
section 2 of Article XV of the Constitution, is nevertheless violative of section 1, subsection (1),
Article III of the Constitution guaranteeing equal protection of the laws for the reason that its
applicability is not uniform throughout the Islands and because section 11 of the said Act endows the
provincial boards with the power to make said law effective or otherwise in their respective or
otherwise in their respective provinces. The private prosecution also filed a supplementary
opposition on April 19, 1937, elaborating on the alleged unconstitutionality on Act No. 4221, as an
undue delegation of legislative power to the provincial boards of several provinces (sec. 1, Art. VI,
Constitution). The City Fiscal concurred in the opposition of the private prosecution except with
respect to the questions raised concerning the constitutionality of Act No. 4221.
On June 28, 1937, herein respondent Judge Jose O. Vera promulgated a resolution with a finding
that "las pruebas no han establecido de unamanera concluyente la culpabilidad del peticionario y
que todos los hechos probados no son inconsistentes o incongrentes con su inocencia" and
concludes that the herein respondent Mariano Cu Unjieng "es inocente por duda racional" of the
crime of which he stands convicted by this court in G.R. No. 41200, but denying the latter's petition
for probation for the reason that:
. . . Si este Juzgado concediera la poblacion solicitada por las circunstancias y la historia
social que se han expuesto en el cuerpo de esta resolucion, que hacen al peticionario
acreedor de la misma, una parte de la opinion publica, atizada por los recelos y las
suspicacias, podria levantarse indignada contra un sistema de probacion que permite atisbar
en los procedimientos ordinarios de una causa criminal perturbando la quietud y la eficacia
de las decisiones ya recaidas al traer a la superficie conclusiones enteramente differentes,
en menoscabo del interes publico que demanda el respeto de las leyes y del veredicto
judicial.
On July 3, 1937, counsel for the herein respondent Mariano Cu Unjieng filed an exception to the
resolution denying probation and a notice of intention to file a motion for reconsideration. An
alternative motion for reconsideration or new trial was filed by counsel on July 13, 1937. This was
supplemented by an additional motion for reconsideration submitted on July 14, 1937. The aforesaid
motions were set for hearing on July 31, 1937, but said hearing was postponed at the petition of
counsel for the respondent Mariano Cu Unjieng because a motion for leave to intervene in the case
as amici curiae signed by thirty-three (thirty-four) attorneys had just been filed with the trial court.
Attorney Eulalio Chaves whose signature appears in the aforesaid motion subsequently filed a
petition for leave to withdraw his appearance as amicus curiae on the ground that the motion for
leave to intervene as amici curiae was circulated at a banquet given by counsel for Mariano Cu
Unjieng on the evening of July 30, 1937, and that he signed the same "without mature deliberation
and purely as a matter of courtesy to the person who invited me (him)."
On August 6, 1937, the Fiscal of the City of Manila filed a motion with the trial court for the issuance
of an order of execution of the judgment of this court in said case and forthwith to commit the herein
respondent Mariano Cu Unjieng to jail in obedience to said judgment.
On August 7, 1937, the private prosecution filed its opposition to the motion for leave to intervene
as amici curiaeaforementioned, asking that a date be set for a hearing of the same and that, at all
events, said motion should be denied with respect to certain attorneys signing the same who were
members of the legal staff of the several counsel for Mariano Cu Unjieng. On August 10, 1937,
herein respondent Judge Jose O. Vera issued an order requiring all parties including the movants for
intervention as amici curiae to appear before the court on August 14, 1937. On the last-mentioned
date, the Fiscal of the City of Manila moved for the hearing of his motion for execution of judgment in
preference to the motion for leave to intervene as amici curiae but, upon objection of counsel for
Mariano Cu Unjieng, he moved for the postponement of the hearing of both motions. The
respondent judge thereupon set the hearing of the motion for execution on August 21, 1937, but
proceeded to consider the motion for leave to intervene as amici curiae as in order. Evidence as to
the circumstances under which said motion for leave to intervene as amici curiae was signed and
submitted to court was to have been heard on August 19, 1937. But at this juncture, herein
petitioners came to this court on extraordinary legal process to put an end to what they alleged was
an interminable proceeding in the Court of First Instance of Manila which fostered "the campaign of
the defendant Mariano Cu Unjieng for delay in the execution of the sentence imposed by this
Honorable Court on him, exposing the courts to criticism and ridicule because of the apparent
inability of the judicial machinery to make effective a final judgment of this court imposed on the
defendant Mariano Cu Unjieng."
The scheduled hearing before the trial court was accordingly suspended upon the issuance of a
temporary restraining order by this court on August 21, 1937.
To support their petition for the issuance of the extraordinary writs of certiorari and prohibition, herein
petitioners allege that the respondent judge has acted without jurisdiction or in excess of his
jurisdiction:
I. Because said respondent judge lacks the power to place respondent Mariano Cu Unjieng under
probation for the following reason:
(1) Under section 11 of Act No. 4221, the said of the Philippine Legislature is made to apply
only to the provinces of the Philippines; it nowhere states that it is to be made applicable to
chartered cities like the City of Manila.
(2) While section 37 of the Administrative Code contains a proviso to the effect that in the
absence of a special provision, the term "province" may be construed to include the City of
Manila for the purpose of giving effect to laws of general application, it is also true that Act
No. 4221 is not a law of general application because it is made to apply only to those
provinces in which the respective provincial boards shall have provided for the salary of a
probation officer.
(3) Even if the City of Manila were considered to be a province, still, Act No. 4221 would not
be applicable to it because it has provided for the salary of a probation officer as required by
section 11 thereof; it being immaterial that there is an Insular Probation Officer willing to act
for the City of Manila, said Probation Officer provided for in section 10 of Act No. 4221 being
different and distinct from the Probation Officer provided for in section 11 of the same Act.
II. Because even if the respondent judge originally had jurisdiction to entertain the application for
probation of the respondent Mariano Cu Unjieng, he nevertheless acted without jurisdiction or in
excess thereof in continuing to entertain the motion for reconsideration and by failing to commit
Mariano Cu Unjieng to prison after he had promulgated his resolution of June 28, 1937, denying
Mariano Cu Unjieng's application for probation, for the reason that:
(1) His jurisdiction and power in probation proceedings is limited by Act No. 4221 to the
granting or denying of applications for probation.
(2) After he had issued the order denying Mariano Cu Unjieng's petition for probation on
June 28, 1937, it became final and executory at the moment of its rendition.
(3) No right on appeal exists in such cases.
(4) The respondent judge lacks the power to grant a rehearing of said order or to modify or
change the same.
III. Because the respondent judge made a finding that Mariano Cu Unjieng is innocent of the crime
for which he was convicted by final judgment of this court, which finding is not only presumptuous
but without foundation in fact and in law, and is furthermore in contempt of this court and a violation
of the respondent's oath of office as ad interim judge of first instance.
IV. Because the respondent judge has violated and continues to violate his duty, which became
imperative when he issued his order of June 28, 1937, denying the application for probation, to
commit his co-respondent to jail.
Petitioners also avers that they have no other plain, speedy and adequate remedy in the ordinary
course of law.
In a supplementary petition filed on September 9, 1937, the petitioner Hongkong and Shanghai
Banking Corporation further contends that Act No. 4221 of the Philippine Legislature providing for a
system of probation for persons eighteen years of age or over who are convicted of crime, is
unconstitutional because it is violative of section 1, subsection (1), Article III, of the Constitution of
the Philippines guaranteeing equal protection of the laws because it confers upon the provincial
board of its province the absolute discretion to make said law operative or otherwise in their
respective provinces, because it constitutes an unlawful and improper delegation to the provincial
boards of the several provinces of the legislative power lodged by the Jones Law (section 8) in the
Philippine Legislature and by the Constitution (section 1, Art. VI) in the National Assembly; and for
the further reason that it gives the provincial boards, in contravention of the Constitution (section 2,
Art. VIII) and the Jones Law (section 28), the authority to enlarge the powers of the Court of First
Instance of different provinces without uniformity. In another supplementary petition dated
September 14, 1937, the Fiscal of the City of Manila, in behalf of one of the petitioners, the People of
the Philippine Islands, concurs for the first time with the issues raised by other petitioner regarding
the constitutionality of Act No. 4221, and on the oral argument held on October 6, 1937, further
elaborated on the theory that probation is a form of reprieve and therefore Act. No. 4221 is an
encroachment on the exclusive power of the Chief Executive to grant pardons and reprieves. On
October 7, 1937, the City Fiscal filed two memorandums in which he contended that Act No. 4221
not only encroaches upon the pardoning power to the executive, but also constitute an unwarranted
delegation of legislative power and a denial of the equal protection of the laws. On October 9, 1937,
two memorandums, signed jointly by the City Fiscal and the Solicitor-General, acting in behalf of the
People of the Philippine Islands, and by counsel for the petitioner, the Hongkong and Shanghai
Banking Corporation, one sustaining the power of the state to impugn the validity of its own laws and
the other contending that Act No. 4221 constitutes an unwarranted delegation of legislative power,
were presented. Another joint memorandum was filed by the same persons on the same day,
October 9, 1937, alleging that Act No. 4221 is unconstitutional because it denies the equal protection
of the laws and constitutes an unlawful delegation of legislative power and, further, that the whole
Act is void: that the Commonwealth is not estopped from questioning the validity of its laws; that the
private prosecution may intervene in probation proceedings and may attack the probation law as
unconstitutional; and that this court may pass upon the constitutional question in prohibition
proceedings.
Respondents in their answer dated August 31, 1937, as well as in their oral argument and
memorandums, challenge each and every one of the foregoing proposition raised by the petitioners.
As special defenses, respondents allege:
(1) That the present petition does not state facts sufficient in law to warrant the issuance of
the writ of certiorari or of prohibition.
(2) That the aforesaid petition is premature because the remedy sought by the petitioners is
the very same remedy prayed for by them before the trial court and was still pending
resolution before the trial court when the present petition was filed with this court.
(3) That the petitioners having themselves raised the question as to the execution of
judgment before the trial court, said trial court has acquired exclusive jurisdiction to resolve
the same under the theory that its resolution denying probation is unappealable.
(4) That upon the hypothesis that this court has concurrent jurisdiction with the Court of First
Instance to decide the question as to whether or not the execution will lie, this court
nevertheless cannot exercise said jurisdiction while the Court of First Instance has assumed
jurisdiction over the same upon motion of herein petitioners themselves.
(5) That upon the procedure followed by the herein petitioners in seeking to deprive the trial
court of its jurisdiction over the case and elevate the proceedings to this court, should not be
tolerated because it impairs the authority and dignity of the trial court which court while sitting
in the probation cases is "a court of limited jurisdiction but of great dignity."
(6) That under the supposition that this court has jurisdiction to resolve the question
submitted to and pending resolution by the trial court, the present action would not lie
because the resolution of the trial court denying probation is appealable; for although the
Probation Law does not specifically provide that an applicant for probation may appeal from
a resolution of the Court of First Instance denying probation, still it is a general rule in this
jurisdiction that a final order, resolution or decision of an inferior court is appealable to the
superior court.
(7) That the resolution of the trial court denying probation of herein respondent Mariano Cu
Unjieng being appealable, the same had not become final and executory for the reason that
the said respondent had filed an alternative motion for reconsideration and new trial within
the requisite period of fifteen days, which motion the trial court was able to resolve in view of
the restraining order improvidently and erroneously issued by this court.lawphi 1. net
(8) That the Fiscal of the City of Manila had by implication admitted that the resolution of the
trial court denying probation is not final and unappealable when he presented his answer to
the motion for reconsideration and agreed to the postponement of the hearing of the said
motion.
(9) That under the supposition that the order of the trial court denying probation is not
appealable, it is incumbent upon the accused to file an action for the issuance of the writ
ofcertiorari with mandamus, it appearing that the trial court, although it believed that the
accused was entitled to probation, nevertheless denied probation for fear of criticism
because the accused is a rich man; and that, before a petition for certiorari grounded on an
irregular exercise of jurisdiction by the trial court could lie, it is incumbent upon the petitioner
to file a motion for reconsideration specifying the error committed so that the trial court could
have an opportunity to correct or cure the same.
(10) That on hypothesis that the resolution of this court is not appealable, the trial court
retains its jurisdiction within a reasonable time to correct or modify it in accordance with law
and justice; that this power to alter or modify an order or resolution is inherent in the courts
and may be exercise either motu proprio or upon petition of the proper party, the petition in
the latter case taking the form of a motion for reconsideration.
(11) That on the hypothesis that the resolution of the trial court is appealable as respondent
allege, said court cannot order execution of the same while it is on appeal, for then the
appeal would not be availing because the doors of probation will be closed from the moment
the accused commences to serve his sentence (Act No. 4221, sec. 1; U.S. vs. Cook, 19 Fed.
[2d], 827).
In their memorandums filed on October 23, 1937, counsel for the respondents maintain that Act No.
4221 is constitutional because, contrary to the allegations of the petitioners, it does not constitute an
undue delegation of legislative power, does not infringe the equal protection clause of the
Constitution, and does not encroach upon the pardoning power of the Executive. In an additional
memorandum filed on the same date, counsel for the respondents reiterate the view that section 11
of Act No. 4221 is free from constitutional objections and contend, in addition, that the private
prosecution may not intervene in probation proceedings, much less question the validity of Act No.
4221; that both the City Fiscal and the Solicitor-General are estopped from questioning the validity of
the Act; that the validity of Act cannot be attacked for the first time before this court; that probation in
unavailable; and that, in any event, section 11 of the Act No. 4221 is separable from the rest of the
Act. The last memorandum for the respondent Mariano Cu Unjieng was denied for having been filed
out of time but was admitted by resolution of this court and filed anew on November 5, 1937.
This memorandum elaborates on some of the points raised by the respondents and refutes those
brought up by the petitioners.
In the scrutiny of the pleadings and examination of the various aspects of the present case, we
noted that the court below, in passing upon the merits of the application of the respondent Mariano
Cu Unjieng and in denying said application assumed the task not only of considering the merits of
the application, but of passing upon the culpability of the applicant, notwithstanding the final
pronouncement of guilt by this court. (G.R. No. 41200.) Probation implies guilt be final judgment.
While a probation case may look into the circumstances attending the commission of the offense,
this does not authorize it to reverse the findings and conclusive of this court, either directly or
indirectly, especially wherefrom its own admission reliance was merely had on the printed briefs,
averments, and pleadings of the parties. As already observed by this court in Shioji vs.
Harvey ([1922], 43 Phil., 333, 337), and reiterated in subsequent cases, "if each and every Court of
First Instance could enjoy the privilege of overruling decisions of the Supreme Court, there would be
no end to litigation, and judicial chaos would result." A becoming modesty of inferior courts demands
conscious realization of the position that they occupy in the interrelation and operation of the
intergrated judicial system of the nation.
After threshing carefully the multifarious issues raised by both counsel for the petitioners and the
respondents, this court prefers to cut the Gordian knot and take up at once the two fundamental
questions presented, namely, (1) whether or not the constitutionality of Act No. 4221 has been
properly raised in these proceedings; and (2) in the affirmative, whether or not said Act is
constitutional. Considerations of these issues will involve a discussion of certain incidental questions
raised by the parties.
To arrive at a correct conclusion on the first question, resort to certain guiding principles is
necessary. It is a well-settled rule that the constitutionality of an act of the legislature will not be
determined by the courts unless that question is properly raised and presented inappropriate cases
and is necessary to a determination of the case; i.e., the issue of constitutionality must be the very lis
mota presented. (McGirr vs. Hamilton and Abreu [1915], 30 Phil., 563, 568; 6 R. C. L., pp. 76, 77; 12
C. J., pp. 780-782, 783.)
The question of the constitutionality of an act of the legislature is frequently raised in ordinary
actions. Nevertheless, resort may be made to extraordinary legal remedies, particularly where the
remedies in the ordinary course of law even if available, are not plain, speedy and adequate. Thus,
in Cu Unjieng vs. Patstone ([1922]), 42 Phil., 818), this court held that the question of the
constitutionality of a statute may be raised by the petitioner in mandamusproceedings (see, also, 12
C. J., p. 783); and in Government of the Philippine Islands vs. Springer ([1927], 50 Phil., 259
[affirmed in Springer vs. Government of the Philippine Islands (1928), 277 U. S., 189; 72 Law. ed.,
845]), this court declared an act of the legislature unconstitutional in an action of quo
warranto brought in the name of the Government of the Philippines. It has also been held that the
constitutionality of a statute may be questioned inhabeas corpus proceedings (12 C. J., p. 783;
Bailey on Habeas Corpus, Vol. I, pp. 97, 117), although there are authorities to the contrary; on an
application for injunction to restrain action under the challenged statute (mandatory, see Cruz vs.
Youngberg [1931], 56 Phil., 234); and even on an application for preliminary injunction where the
determination of the constitutional question is necessary to a decision of the case. (12 C. J., p. 783.)
The same may be said as regards prohibition and certiorari.(Yu Cong Eng vs. Trinidad [1925], 47
Phil., 385; [1926], 271 U. S., 500; 70 Law. ed., 1059; Bell vs. First Judicial District Court [1905], 28
Nev., 280; 81 Pac., 875; 113 A. S. R., 854; 6 Ann. Cas., 982; 1 L. R. A. [N. S], 843, and cases cited).
The case of Yu Cong Eng vs. Trinidad, supra, decided by this court twelve years ago was, like the
present one, an original action for certiorari and prohibition. The constitutionality of Act No. 2972,
popularly known as the Chinese Bookkeeping Law, was there challenged by the petitioners, and the
constitutional issue was not met squarely by the respondent in a demurrer. A point was raised
"relating to the propriety of the constitutional question being decided in original proceedings in
prohibition." This court decided to take up the constitutional question and, with two justices
dissenting, held that Act No. 2972 was constitutional. The case was elevated on writ of certiorari to
the Supreme Court of the United States which reversed the judgment of this court and held that the
Act was invalid. (271 U. S., 500; 70 Law. ed., 1059.) On the question of jurisdiction, however, the
Federal Supreme Court, though its Chief Justice, said:
By the Code of Civil Procedure of the Philippine Islands, section 516, the Philippine supreme
court is granted concurrent jurisdiction in prohibition with courts of first instance over inferior
tribunals or persons, and original jurisdiction over courts of first instance, when such courts
are exercising functions without or in excess of their jurisdiction. It has been held by that
court that the question of the validity of the criminal statute must usually be raised by a
defendant in the trial court and be carried regularly in review to the Supreme Court.
(Cadwallader-Gibson Lumber Co. vs. Del Rosario, 26 Phil., 192). But in this case where a
new act seriously affected numerous persons and extensive property rights, and was likely to
cause a multiplicity of actions, the Supreme Court exercised its discretion to bring the issue
to the act's validity promptly before it and decide in the interest of the orderly administration
of justice. The court relied by analogy upon the cases of Ex parteYoung (209 U. S., 123;52
Law ed., 714; 13 L. R. A. [N. S.] 932; 28 Sup. Ct. Rep., 441; 14 Ann. Ca., 764; Traux vs.
Raich, 239 U. S., 33; 60 Law. ed., 131; L. R. A. 1916D, 545; 36 Sup. Ct. Rep., 7; Ann. Cas.,
1917B, 283; and Wilson vs. New, 243 U. S., 332; 61 Law. ed., 755; L. R. A. 1917E, 938; 37
Sup. Ct. Rep., 298; Ann. Cas. 1918A, 1024). Although objection to the jurisdiction was raise
by demurrer to the petition, this is now disclaimed on behalf of the respondents, and both
parties ask a decision on the merits. In view of the broad powers in prohibition granted to that
court under the Island Code, we acquiesce in the desire of the parties.
The writ of prohibition is an extraordinary judicial writ issuing out of a court of superior jurisdiction
and directed to an inferior court, for the purpose of preventing the inferior tribunal from usurping a
jurisdiction with which it is not legally vested. (High, Extraordinary Legal Remedies, p. 705.) The
general rule, although there is a conflict in the cases, is that the merit of prohibition will not lie
whether the inferior court has jurisdiction independent of the statute the constitutionality of which is
questioned, because in such cases the interior court having jurisdiction may itself determine the
constitutionality of the statute, and its decision may be subject to review, and consequently the
complainant in such cases ordinarily has adequate remedy by appeal without resort to the writ of
prohibition. But where the inferior court or tribunal derives its jurisdiction exclusively from an
unconstitutional statute, it may be prevented by the writ of prohibition from enforcing that statute. (50
C. J., 670; Ex parte Round tree [1874, 51 Ala., 42; In re Macfarland, 30 App. [D. C.], 365; Curtis vs.
Cornish [1912], 109 Me., 384; 84 A., 799; Pennington vs. Woolfolk [1880], 79 Ky., 13; State vs.
Godfrey [1903], 54 W. Va., 54; 46 S. E., 185; Arnold vs. Shields [1837], 5 Dana, 19; 30 Am. Dec.,
669.)
Courts of First Instance sitting in probation proceedings derived their jurisdiction solely from Act No.
4221 which prescribes in detailed manner the procedure for granting probation to accused persons
after their conviction has become final and before they have served their sentence. It is true that at
common law the authority of the courts to suspend temporarily the execution of the sentence is
recognized and, according to a number of state courts, including those of Massachusetts, Michigan,
New York, and Ohio, the power is inherent in the courts (Commonwealth vs. Dowdican's Bail [1874],
115 Mass., 133; People vs. Stickel [1909], 156 Mich., 557; 121 N. W., 497; People ex rel. Forsyth vs.
Court of Session [1894], 141 N. Y., 288; Weber vs. State [1898], 58 Ohio St., 616). But, in the
leading case of Ex parte United States ([1916], 242 U. S., 27; 61 Law. ed., 129; L. R. A., 1917E,
1178; 37 Sup. Ct. Rep., 72; Ann. Cas. 1917B, 355), the Supreme Court of the United States
expressed the opinion that under the common law the power of the court was limited to temporary
suspension, and brushed aside the contention as to inherent judicial power saying, through Chief
Justice White:
Indisputably under our constitutional system the right to try offenses against the criminal laws
and upon conviction to impose the punishment provided by law is judicial, and it is equally to
be conceded that, in exerting the powers vested in them on such subject, courts inherently
possess ample right to exercise reasonable, that is, judicial, discretion to enable them to
wisely exert their authority. But these concessions afford no ground for the contention as to
power here made, since it must rest upon the proposition that the power to enforce begets
inherently a discretion to permanently refuse to do so. And the effect of the proposition urged
upon the distribution of powers made by the Constitution will become apparent when it is
observed that indisputable also is it that the authority to define and fix the punishment for
crime is legislative and includes the right in advance to bring within judicial discretion, for the
purpose of executing the statute, elements of consideration which would be otherwise
beyond the scope of judicial authority, and that the right to relieve from the punishment, fixed
by law and ascertained according to the methods by it provided belongs to the executive
department.
Justice Carson, in his illuminating concurring opinion in the case of Director of Prisons vs. Judge of
First Instance of Cavite (29 Phil., 265), decided by this court in 1915, also reached the conclusion
that the power to suspend the execution of sentences pronounced in criminal cases is not inherent in
the judicial function. "All are agreed", he said, "that in the absence of statutory authority, it does not
lie within the power of the courts to grant such suspensions." (at p. 278.) Both petitioner and
respondents are correct, therefore, when they argue that a Court of First Instance sitting in probation
proceedings is a court of limited jurisdiction. Its jurisdiction in such proceedings is conferred
exclusively by Act No. 4221 of the Philippine Legislature.
It is, of course, true that the constitutionality of a statute will not be considered on application for
prohibition where the question has not been properly brought to the attention of the court by
objection of some kind (Hill vs. Tarver [1901], 130 Ala., 592; 30 S., 499; State ex rel. Kelly vs. Kirby
[1914], 260 Mo., 120; 168 S. W., 746). In the case at bar, it is unquestionable that the constitutional
issue has been squarely presented not only before this court by the petitioners but also before the
trial court by the private prosecution. The respondent, Hon. Jose O Vera, however, acting as judge
of the court below, declined to pass upon the question on the ground that the private prosecutor, not
being a party whose rights are affected by the statute, may not raise said question. The respondent
judge cited Cooley on Constitutional Limitations (Vol. I, p. 339; 12 C. J., sec. 177, pp. 760 and 762),
and McGlue vs. Essex County ([1916], 225 Mass., 59; 113 N. E., 742, 743), as authority for the
proposition that a court will not consider any attack made on the constitutionality of a statute by one
who has no interest in defeating it because his rights are not affected by its operation. The
respondent judge further stated that it may not motu proprio take up the constitutional question and,
agreeing with Cooley that "the power to declare a legislative enactment void is one which the judge,
conscious of the fallibility of the human judgment, will shrink from exercising in any case where he
can conscientiously and with due regard to duty and official oath decline the responsibility"
(Constitutional Limitations, 8th ed., Vol. I, p. 332), proceeded on the assumption that Act No. 4221 is
constitutional. While therefore, the court a quo admits that the constitutional question was raised
before it, it refused to consider the question solely because it was not raised by a proper party.
Respondents herein reiterates this view. The argument is advanced that the private prosecution has
no personality to appear in the hearing of the application for probation of defendant Mariano Cu
Unjieng in criminal case No. 42648 of the Court of First Instance of Manila, and hence the issue of
constitutionality was not properly raised in the lower court. Although, as a general rule, only those
who are parties to a suit may question the constitutionality of a statute involved in a judicial decision,
it has been held that since the decree pronounced by a court without jurisdiction is void, where the
jurisdiction of the court depends on the validity of the statute in question, the issue of the
constitutionality will be considered on its being brought to the attention of the court by persons
interested in the effect to be given the statute.(12 C. J., sec. 184, p. 766.) And, even if we were to
concede that the issue was not properly raised in the court below by the proper party, it does not
follow that the issue may not be here raised in an original action of certiorari and prohibitions. It is
true that, as a general rule, the question of constitutionality must be raised at the earliest opportunity,
so that if not raised by the pleadings, ordinarily it may not be raised at the trial, and if not raised in
the trial court, it will not considered on appeal. (12 C. J., p. 786. See, also, Cadwallader-Gibson
Lumber Co. vs. Del Rosario, 26 Phil., 192, 193-195.) But we must state that the general rule admits
of exceptions. Courts, in the exercise of sounds discretion, may determine the time when a question
affecting the constitutionality of a statute should be presented. (In re Woolsey [1884], 95 N. Y., 135,
144.) Thus, in criminal cases, although there is a very sharp conflict of authorities, it is said that the
question may be raised for the first time at any stage of the proceedings, either in the trial court or on
appeal. (12 C. J., p. 786.) Even in civil cases, it has been held that it is the duty of a court to pass on
the constitutional question, though raised for the first time on appeal, if it appears that a
determination of the question is necessary to a decision of the case. (McCabe's Adm'x vs. Maysville
& B. S. R. Co., [1910], 136 ky., 674; 124 S. W., 892; Lohmeyer vs. St. Louis Cordage Co. [1908],
214 Mo., 685; 113 S. W. 1108; Carmody vs. St. Louis Transit Co., [1905], 188 Mo., 572; 87 S. W.,
913.) And it has been held that a constitutional question will be considered by an appellate court at
any time, where it involves the jurisdiction of the court below (State vs. Burke [1911], 175 Ala., 561;
57 S., 870.) As to the power of this court to consider the constitutional question raised for the first
time before this court in these proceedings, we turn again and point with emphasis to the case of Yu
Cong Eng vs. Trinidad, supra. And on the hypotheses that the Hongkong & Shanghai Banking
Corporation, represented by the private prosecution, is not the proper party to raise the constitutional
question here a point we do not now have to decide we are of the opinion that the People of
the Philippines, represented by the Solicitor-General and the Fiscal of the City of Manila, is such a
proper party in the present proceedings. The unchallenged rule is that the person who impugns the
validity of a statute must have a personal and substantial interest in the case such that he has
sustained, or will sustained, direct injury as a result of its enforcement. It goes without saying that if
Act No. 4221 really violates the constitution, the People of the Philippines, in whose name the
present action is brought, has a substantial interest in having it set aside. Of grater import than the
damage caused by the illegal expenditure of public funds is the mortal wound inflicted upon the
fundamental law by the enforcement of an invalid statute. Hence, the well-settled rule that the state
can challenge the validity of its own laws. In Government of the Philippine Islands vs. Springer
([1927]), 50 Phil., 259 (affirmed in Springer vs. Government of the Philippine Islands [1928], 277
U.S., 189; 72 Law. ed., 845), this court declared an act of the legislature unconstitutional in an action
instituted in behalf of the Government of the Philippines. In Attorney General vs. Perkins ([1889], 73
Mich., 303, 311, 312; 41 N. W. 426, 428, 429), the State of Michigan, through its Attorney General,
instituted quo warranto proceedings to test the right of the respondents to renew a mining
corporation, alleging that the statute under which the respondents base their right was
unconstitutional because it impaired the obligation of contracts. The capacity of the chief law officer
of the state to question the constitutionality of the statute was though, as a general rule, only those
who are parties to a suit may question the constitutionality of a statute involved in a judicial decision,
it has been held that since the decree pronounced by a court without jurisdiction in void, where the
jurisdiction of the court depends on the validity of the statute in question, the issue of constitutionality
will be considered on its being brought to the attention of the court by persons interested in the effect
to begin the statute. (12 C.J., sec. 184, p. 766.) And, even if we were to concede that the issue was
not properly raised in the court below by the proper party, it does not follow that the issue may not be
here raised in an original action of certiorari and prohibition. It is true that, as a general rule, the
question of constitutionality must be raised at the earliest opportunity, so that if not raised by the
pleadings, ordinarily it may not be raised a the trial, and if not raised in the trial court, it will not be
considered on appeal. (12 C.J., p. 786. See, also, Cadwallader-Gibson Lumber Co. vs. Del Rosario,
26 Phil., 192, 193-195.) But we must state that the general rule admits of exceptions. Courts, in the
exercise of sound discretion, may determine the time when a question affecting the constitutionality
of a statute should be presented. (In re Woolsey [19884], 95 N.Y., 135, 144.) Thus, in criminal
cases, although there is a very sharp conflict of authorities, it is said that the question may be raised
for the first time at any state of the proceedings, either in the trial court or on appeal. (12 C.J., p.
786.) Even in civil cases, it has been held that it is the duty of a court to pass on the constitutional
question, though raised for first time on appeal, if it appears that a determination of the question is
necessary to a decision of the case. (McCabe's Adm'x vs. Maysville & B. S. R. Co. [1910], 136 Ky.,
674; 124 S. W., 892; Lohmeyer vs. St. Louis, Cordage Co. [1908], 214 Mo. 685; 113 S. W., 1108;
Carmody vs. St. Louis Transit Co. [1905], 188 Mo., 572; 87 S. W., 913.) And it has been held that a
constitutional question will be considered by an appellate court at any time, where it involves the
jurisdiction of the court below (State vs. Burke [1911], 175 Ala., 561; 57 S., 870.) As to the power of
this court to consider the constitutional question raised for the first time before this court in these
proceedings, we turn again and point with emphasis to the case of Yu Cong Eng. vs. Trinidad,
supra. And on the hypothesis that the Hongkong & Shanghai Banking Corporation, represented by
the private prosecution, is not the proper party to raise the constitutional question here a point we
do not now have to decide we are of the opinion that the People of the Philippines, represented
by the Solicitor-General and the Fiscal of the City of Manila, is such a proper party in the present
proceedings. The unchallenged rule is that the person who impugns the validity of a statute must
have a personal and substantial interest in the case such that he has sustained, or will sustain, direct
injury as a result of its enforcement. It goes without saying that if Act No. 4221 really violates the
Constitution, the People of the Philippines, in whose name the present action is brought, has a
substantial interest in having it set aside. Of greater import than the damage caused by the illegal
expenditure of public funds is the mortal wound inflicted upon the fundamental law by the
enforcement of an invalid statute. Hence, the well-settled rule that the state can challenge the
validity of its own laws. In Government of the Philippine Islands vs. Springer ([1927]), 50 Phil., 259
(affirmed in Springer vs. Government of the Philippine Islands [1928], 277 U.S., 189; 72 Law. ed.,
845), this court declared an act of the legislature unconstitutional in an action instituted in behalf of
the Government of the Philippines. In Attorney General vs. Perkings([1889], 73 Mich., 303, 311, 312;
41 N.W., 426, 428, 429), the State of Michigan, through its Attorney General, instituted quo warranto
proceedings to test the right of the respondents to renew a mining corporation, alleging that the
statute under which the respondents base their right was unconstitutional because it impaired the
obligation of contracts. The capacity of the chief law officer of the state to question the
constitutionality of the statute was itself questioned. Said the Supreme Court of Michigan, through
Champlin, J.:
. . . The idea seems to be that the people are estopped from questioning the validity of a law
enacted by their representatives; that to an accusation by the people of Michigan of
usurpation their government, a statute enacted by the people of Michigan is an adequate
answer. The last proposition is true, but, if the statute relied on in justification is
unconstitutional, it is statute only in form, and lacks the force of law, and is of no more saving
effect to justify action under it than if it had never been enacted. The constitution is the
supreme law, and to its behests the courts, the legislature, and the people must bow . . . The
legislature and the respondents are not the only parties in interest upon such constitutional
questions. As was remarked by Mr. Justice Story, in speaking of an acquiescence by a party
affected by an unconstitutional act of the legislature: "The people have a deep and vested
interest in maintaining all the constitutional limitations upon the exercise of legislative
powers." (Allen vs. Mckeen, 1 Sum., 314.)
In State vs. Doane ([1916], 98 Kan., 435; 158 Pac., 38, 40), an original action (mandamus) was
brought by the Attorney-General of Kansas to test the constitutionality of a statute of the state. In
disposing of the question whether or not the state may bring the action, the Supreme Court of
Kansas said:
. . . the state is a proper party indeed, the proper party to bring this action. The state is
always interested where the integrity of its Constitution or statutes is involved.
"It has an interest in seeing that the will of the Legislature is not disregarded,
and need not, as an individual plaintiff must, show grounds of fearing more
specific injury. (State vs. Kansas City 60 Kan., 518 [57 Pac., 118])." (State vs.
Lawrence, 80 Kan., 707; 103 Pac., 839.)
Where the constitutionality of a statute is in doubt the state's law officer, its Attorney-General,
or county attorney, may exercise his bet judgment as to what sort of action he will bring to
have the matter determined, either by quo warranto to challenge its validity (State vs.
Johnson, 61 Kan., 803; 60 Pac., 1068; 49 L.R.A., 662), by mandamus to compel obedience
to its terms (State vs. Dolley, 82 Kan., 533; 108 Pac., 846), or by injunction to restrain
proceedings under its questionable provisions (State ex rel. vs. City of Neodesha, 3 Kan.
App., 319; 45 Pac., 122).
Other courts have reached the same conclusion (See State vs. St. Louis S. W. Ry. Co. [1917], 197
S. W., 1006; State vs. S.H. Kress & Co. [1934], 155 S., 823; State vs. Walmsley [1935], 181 La.,
597; 160 S., 91; State vs. Board of County Comr's [1934], 39 Pac. [2d], 286; First Const. Co. of
Brooklyn vs. State [1917], 211 N.Y., 295; 116 N.E., 1020; Bush vs. State {1918], 187 Ind., 339; 119
N.E., 417; State vs. Watkins [1933], 176 La., 837; 147 S., 8, 10, 11). In the case last cited, the
Supreme Court of Luisiana said:
It is contended by counsel for Herbert Watkins that a district attorney, being charged with the
duty of enforcing the laws, has no right to plead that a law is unconstitutional. In support of
the argument three decisions are cited, viz.: State ex rel. Hall, District Attorney, vs. Judge of
Tenth Judicial District (33 La. Ann., 1222); State ex rel. Nicholls, Governor vs. Shakespeare,
Mayor of New Orleans (41 Ann., 156; 6 So., 592); and State ex rel., Banking Co., etc. vs.
Heard, Auditor (47 La. Ann., 1679; 18 So., 746; 47 L. R. A., 512). These decisions do not
forbid a district attorney to plead that a statute is unconstitutional if he finds if in conflict with
one which it is his duty to enforce. In State ex rel. Hall, District Attorney, vs. Judge, etc., the
ruling was the judge should not, merely because he believed a certain statute to be
unconstitutional forbid the district attorney to file a bill of information charging a person with a
violation of the statute. In other words, a judge should not judicially declare a statute
unconstitutional until the question of constitutionality is tendered for decision, and unless it
must be decided in order to determine the right of a party litigant. State ex rel. Nicholls,
Governor, etc., is authority for the proposition merely that an officer on whom a statute
imposes the duty of enforcing its provisions cannot avoid the duty upon the ground that he
considers the statute unconstitutional, and hence in enforcing the statute he is immune from
responsibility if the statute be unconstitutional. State ex rel. Banking Co., etc., is authority for
the proposition merely that executive officers, e.g., the state auditor and state treasurer,
should not decline to perform ministerial duties imposed upon them by a statute, on the
ground that they believe the statute is unconstitutional.
It is the duty of a district attorney to enforce the criminal laws of the state, and, above all, to
support the Constitution of the state. If, in the performance of his duty he finds two statutes in
conflict with each other, or one which repeals another, and if, in his judgment, one of the two
statutes is unconstitutional, it is his duty to enforce the other; and, in order to do so, he is
compelled to submit to the court, by way of a plea, that one of the statutes is
unconstitutional. If it were not so, the power of the Legislature would be free from
constitutional limitations in the enactment of criminal laws.
The respondents do not seem to doubt seriously the correctness of the general proposition that the
state may impugn the validity of its laws. They have not cited any authority running clearly in the
opposite direction. In fact, they appear to have proceeded on the assumption that the rule as stated
is sound but that it has no application in the present case, nor may it be invoked by the City Fiscal in
behalf of the People of the Philippines, one of the petitioners herein, the principal reasons being that
the validity before this court, that the City Fiscal is estopped from attacking the validity of the Act
and, not authorized challenge the validity of the Act in its application outside said city. (Additional
memorandum of respondents, October 23, 1937, pp. 8,. 10, 17 and 23.)
The mere fact that the Probation Act has been repeatedly relied upon the past and all that time has
not been attacked as unconstitutional by the Fiscal of Manila but, on the contrary, has been impliedly
regarded by him as constitutional, is no reason for considering the People of the Philippines
estopped from nor assailing its validity. For courts will pass upon a constitutional questions only
when presented before it in bona fide cases for determination, and the fact that the question has not
been raised before is not a valid reason for refusing to allow it to be raised later. The fiscal and all
others are justified in relying upon the statute and treating it as valid until it is held void by the courts
in proper cases.
It remains to consider whether the determination of the constitutionality of Act No. 4221 is necessary
to the resolution of the instant case. For, ". . . while the court will meet the question with firmness,
where its decision is indispensable, it is the part of wisdom, and just respect for the legislature,
renders it proper, to waive it, if the case in which it arises, can be decided on other points." (Ex
parte Randolph [1833], 20 F. Cas. No. 11, 558; 2 Brock., 447. Vide, also Hoover vs. wood [1857], 9
Ind., 286, 287.) It has been held that the determination of a constitutional question is necessary
whenever it is essential to the decision of the case (12 C. J., p. 782, citing Long Sault Dev. Co. vs.
Kennedy [1913], 158 App. Div., 398; 143 N. Y. Supp., 454 [aff. 212 N.Y., 1: 105 N. E., 849; Ann.
Cas. 1915D, 56; and app dism 242 U.S., 272]; Hesse vs. Ledesma, 7 Porto Rico Fed., 520; Cowan
vs. Doddridge, 22 Gratt [63 Va.], 458; Union Line Co., vs. Wisconsin R. Commn., 146 Wis., 523; 129
N. W., 605), as where the right of a party is founded solely on a statute the validity of which is
attacked. (12 C.J., p. 782, citing Central Glass Co. vs. Niagrara F. Ins. Co., 131 La., 513; 59 S., 972;
Cheney vs. Beverly, 188 Mass., 81; 74 N.E., 306). There is no doubt that the respondent Cu Unjieng
draws his privilege to probation solely from Act No. 4221 now being assailed.
Apart from the foregoing considerations, that court will also take cognizance of the fact that the
Probation Act is a new addition to our statute books and its validity has never before been passed
upon by the courts; that may persons accused and convicted of crime in the City of Manila have
applied for probation; that some of them are already on probation; that more people will likely take
advantage of the Probation Act in the future; and that the respondent Mariano Cu Unjieng has been
at large for a period of about four years since his first conviction. All wait the decision of this court on
the constitutional question. Considering, therefore, the importance which the instant case has
assumed and to prevent multiplicity of suits, strong reasons of public policy demand that the
constitutionality of Act No. 4221 be now resolved. (Yu Cong Eng vs. Trinidad [1925], 47 Phil., 385;
[1926], 271 U.S., 500; 70 Law. ed., 1059. See 6 R.C.L., pp. 77, 78; People vs. Kennedy [1913], 207
N.Y., 533; 101 N.E., 442, 444; Ann. Cas. 1914C, 616; Borginis vs. Falk Co. [1911], 147 Wis., 327;
133 N.W., 209, 211; 37 L.R.A. [N.S.] 489; Dimayuga and Fajardo vs. Fernandez [1922], 43 Phil.,
304.) In Yu Cong Eng vs. Trinidad, supra, an analogous situation confronted us. We said: "Inasmuch
as the property and personal rights of nearly twelve thousand merchants are affected by these
proceedings, and inasmuch as Act No. 2972 is a new law not yet interpreted by the courts, in the
interest of the public welfare and for the advancement of public policy, we have determined to
overrule the defense of want of jurisdiction in order that we may decide the main issue. We have
here an extraordinary situation which calls for a relaxation of the general rule." Our ruling on this
point was sustained by the Supreme Court of the United States. A more binding authority in support
of the view we have taken can not be found.
We have reached the conclusion that the question of the constitutionality of Act No. 4221 has been
properly raised. Now for the main inquiry: Is the Act unconstitutional?
Under a doctrine peculiarly American, it is the office and duty of the judiciary to enforce the
Constitution. This court, by clear implication from the provisions of section 2, subsection 1, and
section 10, of Article VIII of the Constitution, may declare an act of the national legislature invalid
because in conflict with the fundamental lay. It will not shirk from its sworn duty to enforce the
Constitution. And, in clear cases, it will not hesitate to give effect to the supreme law by setting aside
a statute in conflict therewith. This is of the essence of judicial duty.
This court is not unmindful of the fundamental criteria in cases of this nature that all reasonable
doubts should be resolved in favor of the constitutionality of a statute. An act of the legislature
approved by the executive, is presumed to be within constitutional limitations. The responsibility of
upholding the Constitution rests not on the courts alone but on the legislature as well. "The question
of the validity of every statute is first determined by the legislative department of the government
itself." (U.S. vs. Ten Yu [1912], 24 Phil., 1, 10; Case vs. Board of Health and Heiser [1913], 24 Phil.,
250, 276; U.S. vs. Joson [1913], 26 Phil., 1.) And a statute finally comes before the courts sustained
by the sanction of the executive. The members of the Legislature and the Chief Executive have
taken an oath to support the Constitution and it must be presumed that they have been true to this
oath and that in enacting and sanctioning a particular law they did not intend to violate the
Constitution. The courts cannot but cautiously exercise its power to overturn the solemn declarations
of two of the three grand departments of the governments. (6 R.C.L., p. 101.) Then, there is that
peculiar political philosophy which bids the judiciary to reflect the wisdom of the people as expressed
through an elective Legislature and an elective Chief Executive. It follows, therefore, that the courts
will not set aside a law as violative of the Constitution except in a clear case. This is a proposition
too plain to require a citation of authorities.
One of the counsel for respondents, in the course of his impassioned argument, called attention to
the fact that the President of the Philippines had already expressed his opinion against the
constitutionality of the Probation Act, adverting that as to the Executive the resolution of this question
was a foregone conclusion. Counsel, however, reiterated his confidence in the integrity and
independence of this court. We take notice of the fact that the President in his message dated
September 1, 1937, recommended to the National Assembly the immediate repeal of the Probation
Act (No. 4221); that this message resulted in the approval of Bill No. 2417 of the Nationality
Assembly repealing the probation Act, subject to certain conditions therein mentioned; but that said
bill was vetoed by the President on September 13, 1937, much against his wish, "to have stricken
out from the statute books of the Commonwealth a law . . . unfair and very likely unconstitutional." It
is sufficient to observe in this connection that, in vetoing the bill referred to, the President exercised
his constitutional prerogative. He may express the reasons which he may deem proper for taking
such a step, but his reasons are not binding upon us in the determination of actual controversies
submitted for our determination. Whether or not the Executive should express or in any manner
insinuate his opinion on a matter encompassed within his broad constitutional power of veto but
which happens to be at the same time pending determination in this court is a question of propriety
for him exclusively to decide or determine. Whatever opinion is expressed by him under these
circumstances, however, cannot sway our judgment on way or another and prevent us from taking
what in our opinion is the proper course of action to take in a given case. It if is ever necessary for us
to make any vehement affirmance during this formative period of our political history, it is that we are
independent of the Executive no less than of the Legislative department of our government
independent in the performance of our functions, undeterred by any consideration, free from politics,
indifferent to popularity, and unafraid of criticism in the accomplishment of our sworn duty as we see
it and as we understand it.
The constitutionality of Act No. 4221 is challenged on three principal grounds: (1) That said Act
encroaches upon the pardoning power of the Executive; (2) that its constitutes an undue delegation
of legislative power and (3) that it denies the equal protection of the laws.
1. Section 21 of the Act of Congress of August 29, 1916, commonly known as the Jones Law, in
force at the time of the approval of Act No. 4221, otherwise known as the Probation Act, vests in the
Governor-General of the Philippines "the exclusive power to grant pardons and reprieves and remit
fines and forfeitures". This power is now vested in the President of the Philippines. (Art. VII, sec. 11,
subsec. 6.) The provisions of the Jones Law and the Constitution differ in some respects. The
adjective "exclusive" found in the Jones Law has been omitted from the Constitution. Under the
Jones Law, as at common law, pardon could be granted any time after the commission of the
offense, either before or after conviction (Vide Constitution of the United States, Art. II, sec. 2; In
re Lontok [1922], 43 Phil., 293). The Governor-General of the Philippines was thus empowered, like
the President of the United States, to pardon a person before the facts of the case were fully brought
to light. The framers of our Constitution thought this undesirable and, following most of the state
constitutions, provided that the pardoning power can only be exercised "after conviction". So, too,
under the new Constitution, the pardoning power does not extend to "cases of impeachment". This is
also the rule generally followed in the United States (Vide Constitution of the United States, Art. II,
sec. 2). The rule in England is different. There, a royal pardon can not be pleaded in bar of an
impeachment; "but," says Blackstone, "after the impeachment has been solemnly heard and
determined, it is not understood that the king's royal grace is further restrained or abridged." (Vide,
Ex parte Wells [1856], 18 How., 307; 15 Law. ed., 421; Com. vs. Lockwood [1872], 109 Mass., 323;
12 Am. Rep., 699; Sterling vs. Drake [1876], 29 Ohio St., 457; 23 am. Rep., 762.) The reason for the
distinction is obvious. In England, Judgment on impeachment is not confined to mere "removal from
office and disqualification to hold and enjoy any office of honor, trust, or profit under the
Government" (Art. IX, sec. 4, Constitution of the Philippines) but extends to the whole punishment
attached by law to the offense committed. The House of Lords, on a conviction may, by its sentence,
inflict capital punishment, perpetual banishment, perpetual banishment, fine or imprisonment,
depending upon the gravity of the offense committed, together with removal from office and
incapacity to hold office. (Com. vs. Lockwood, supra.) Our Constitution also makes specific mention
of "commutation" and of the power of the executive to impose, in the pardons he may grant, such
conditions, restrictions and limitations as he may deem proper. Amnesty may be granted by the
President under the Constitution but only with the concurrence of the National Assembly. We need
not dwell at length on the significance of these fundamental changes. It is sufficient for our purposes
to state that the pardoning power has remained essentially the same. The question is: Has the
pardoning power of the Chief Executive under the Jones Law been impaired by the Probation Act?
As already stated, the Jones Law vests the pardoning power exclusively in the Chief Executive. The
exercise of the power may not, therefore, be vested in anyone else.
". . . The benign prerogative of mercy reposed in the executive cannot be taken away nor fettered by
any legislative restrictions, nor can like power be given by the legislature to any other officer or
authority. The coordinate departments of government have nothing to do with the pardoning power,
since no person properly belonging to one of the departments can exercise any powers appertaining
to either of the others except in cases expressly provided for by the constitution." (20 R.C.L., pp., ,
and cases cited.) " . . . where the pardoning power is conferred on the executive without express or
implied limitations, the grant is exclusive, and the legislature can neither exercise such power itself
nor delegate it elsewhere, nor interfere with or control the proper exercise thereof, . . ." (12 C.J., pp.
838, 839, and cases cited.) If Act No. 4221, then, confers any pardoning power upon the courts it is
for that reason unconstitutional and void. But does it?
In the famous Killitts decision involving an embezzlement case, the Supreme Court of the United
States ruled in 1916 that an order indefinitely suspending sentenced was void. (Ex parte United
States [1916], 242 U.S., 27; 61 Law. ed., 129; L.R.A. 1917E, 1178; 37 Sup. Ct. Rep., 72; Ann. Cas.
1917B, 355.) Chief Justice White, after an exhaustive review of the authorities, expressed the
opinion of the court that under the common law the power of the court was limited to temporary
suspension and that the right to suspend sentenced absolutely and permanently was vested in the
executive branch of the government and not in the judiciary. But, the right of Congress to establish
probation by statute was conceded. Said the court through its Chief Justice: ". . . and so far as the
future is concerned, that is, the causing of the imposition of penalties as fixed to be subject, by
probation legislation or such other means as the legislative mind may devise, to such judicial
discretion as may be adequate to enable courts to meet by the exercise of an enlarged but wise
discretion the infinite variations which may be presented to them for judgment, recourse must be had
Congress whose legislative power on the subject is in the very nature of things adequately
complete." (Quoted in Riggs vs. United States [1926], 14 F. [2d], 5, 6.) This decision led the National
Probation Association and others to agitate for the enactment by Congress of a federal probation
law. Such action was finally taken on March 4, 1925 (chap. 521, 43 Stat. L. 159, U.S.C. title 18, sec.
724). This was followed by an appropriation to defray the salaries and expenses of a certain number
of probation officers chosen by civil service. (Johnson, Probation for Juveniles and Adults, p. 14.)
In United States vs. Murray ([1925], 275 U.S., 347; 48 Sup. Ct. Rep., 146; 72 Law. ed., 309), the
Supreme Court of the United States, through Chief Justice Taft, held that when a person sentenced
to imprisonment by a district court has begun to serve his sentence, that court has no power under
the Probation Act of March 4, 1925 to grant him probation even though the term at which sentence
was imposed had not yet expired. In this case of Murray, the constitutionality of the probation Act
was not considered but was assumed. The court traced the history of the Act and quoted from the
report of the Committee on the Judiciary of the United States House of Representatives (Report No.
1377, 68th Congress, 2 Session) the following statement:
Prior to the so-called Killitts case, rendered in December, 1916, the district courts exercised
a form of probation either, by suspending sentence or by placing the defendants under state
probation officers or volunteers. In this case, however (Ex parte United States, 242 U.S., 27;
61 L. Ed., 129; L.R.A., 1917E, 1178; 37 Sup. Ct. Rep., 72 Ann. Cas. 1917B, 355), the
Supreme Court denied the right of the district courts to suspend sentenced. In the same
opinion the court pointed out the necessity for action by Congress if the courts were to
exercise probation powers in the future . . .
Since this decision was rendered, two attempts have been made to enact probation
legislation. In 1917, a bill was favorably reported by the Judiciary Committee and passed the
House. In 1920, the judiciary Committee again favorably reported a probation bill to the
House, but it was never reached for definite action.
If this bill is enacted into law, it will bring the policy of the Federal government with reference
to its treatment of those convicted of violations of its criminal laws in harmony with that of the
states of the Union. At the present time every state has a probation law, and in all but twelve
states the law applies both to adult and juvenile offenders. (see, also, Johnson, Probation for
Juveniles and Adults [1928], Chap. I.)
The constitutionality of the federal probation law has been sustained by inferior federal courts. In
Riggs vs. United States supra, the Circuit Court of Appeals of the Fourth Circuit said:
Since the passage of the Probation Act of March 4, 1925, the questions under consideration
have been reviewed by the Circuit Court of Appeals of the Ninth Circuit (7 F. [2d], 590), and
the constitutionality of the act fully sustained, and the same held in no manner to encroach
upon the pardoning power of the President. This case will be found to contain an able and
comprehensive review of the law applicable here. It arose under the act we have to consider,
and to it and the authorities cited therein special reference is made (Nix vs. James, 7 F. [2d],
590, 594), as is also to a decision of the Circuit Court of Appeals of the Seventh Circuit
(Kriebel vs. U.S., 10 F. [2d], 762), likewise construing the Probation Act.
We have seen that in 1916 the Supreme Court of the United States; in plain and unequivocal
language, pointed to Congress as possessing the requisite power to enact probation laws, that a
federal probation law as actually enacted in 1925, and that the constitutionality of the Act has been
assumed by the Supreme Court of the United States in 1928 and consistently sustained by the
inferior federal courts in a number of earlier cases.
We are fully convinced that the Philippine Legislature, like the Congress of the United States, may
legally enact a probation law under its broad power to fix the punishment of any and all penal
offenses. This conclusion is supported by other authorities. In Ex parte Bates ([1915], 20 N. M., 542;
L.R.A. 1916A, 1285; 151 Pac., 698, the court said: "It is clearly within the province of the Legislature
to denominate and define all classes of crime, and to prescribe for each a minimum and maximum
punishment." And in State vs. Abbott ([1910], 87 S.C., 466; 33 L.R.A. [N. S.], 112; 70 S. E., 6; Ann.
Cas. 1912B, 1189), the court said: "The legislative power to set punishment for crime is very broad,
and in the exercise of this power the general assembly may confer on trial judges, if it sees fit, the
largest discretion as to the sentence to be imposed, as to the beginning and end of the punishment
and whether it should be certain or indeterminate or conditional." (Quoted in State vs. Teal [1918],
108 S. C., 455; 95 S. E., 69.) Indeed, the Philippine Legislature has defined all crimes and fixed the
penalties for their violation. Invariably, the legislature has demonstrated the desire to vest in the
courts particularly the trial courts large discretion in imposing the penalties which the law
prescribes in particular cases. It is believed that justice can best be served by vesting this power in
the courts, they being in a position to best determine the penalties which an individual convict,
peculiarly circumstanced, should suffer. Thus, while courts are not allowed to refrain from imposing a
sentence merely because, taking into consideration the degree of malice and the injury caused by
the offense, the penalty provided by law is clearly excessive, the courts being allowed in such case
to submit to the Chief Executive, through the Department of Justice, such statement as it may deem
proper (see art. 5, Revised Penal Code), in cases where both mitigating and aggravating
circumstances are attendant in the commission of a crime and the law provides for a penalty
composed of two indivisible penalties, the courts may allow such circumstances to offset one
another in consideration of their number and importance, and to apply the penalty according to the
result of such compensation. (Art. 63, rule 4, Revised Penal Code; U.S. vs. Reguera and Asuategui
[1921], 41 Phil., 506.) Again, article 64, paragraph 7, of the Revised Penal Code empowers the
courts to determine, within the limits of each periods, in case the penalty prescribed by law contains
three periods, the extent of the evil produced by the crime. In the imposition of fines, the courts are
allowed to fix any amount within the limits established by law, considering not only the mitigating and
aggravating circumstances, but more particularly the wealth or means of the culprit. (Art. 66, Revised
Penal Code.) Article 68, paragraph 1, of the same Code provides that "a discretionary penalty shall
be imposed" upon a person under fifteen but over nine years of age, who has not acted without
discernment, but always lower by two degrees at least than that prescribed by law for the crime
which he has committed. Article 69 of the same Code provides that in case of "incomplete self-
defense", i.e., when the crime committed is not wholly excusable by reason of the lack of some of
the conditions required to justify the same or to exempt from criminal liability in the several cases
mentioned in article 11 and 12 of the Code, "the courts shall impose the penalty in the period which
may be deemed proper, in view of the number and nature of the conditions of exemption present or
lacking." And, in case the commission of what are known as "impossible" crimes, "the court, having
in mind the social danger and the degree of criminality shown by the offender," shall impose upon
him either arresto mayor or a fine ranging from 200 to 500 pesos. (Art. 59, Revised Penal Code.)
Under our Revised Penal Code, also, one-half of the period of preventive imprisonment is deducted
form the entire term of imprisonment, except in certain cases expressly mentioned (art. 29); the
death penalty is not imposed when the guilty person is more than seventy years of age, or where
upon appeal or revision of the case by the Supreme Court, all the members thereof are not
unanimous in their voting as to the propriety of the imposition of the death penalty (art. 47, see also,
sec. 133, Revised Administrative Code, as amended by Commonwealth Act No. 3); the death
sentence is not to be inflicted upon a woman within the three years next following the date of the
sentence or while she is pregnant, or upon any person over seventy years of age (art. 83); and when
a convict shall become insane or an imbecile after final sentence has been pronounced, or while he
is serving his sentenced, the execution of said sentence shall be suspended with regard to the
personal penalty during the period of such insanity or imbecility (art. 79).
But the desire of the legislature to relax what might result in the undue harshness of the penal laws
is more clearly demonstrated in various other enactments, including the probation Act. There is the
Indeterminate Sentence Law enacted in 1933 as Act No. 4103 and subsequently amended by Act
No. 4225, establishing a system of parole (secs. 5 to 100 and granting the courts large discretion in
imposing the penalties of the law. Section 1 of the law as amended provides; "hereafter, in imposing
a prison sentence for an offenses punished by the Revised Penal Code, or its amendments, the
court shall sentence the accused to an indeterminate sentence the maximum term of which shall be
that which, in view of the attending circumstances, could be properly imposed under the rules of the
said Code, and to a minimum which shall be within the range of the penalty next lower to that
prescribed by the Code for the offense; and if the offense is punished by any other law, the court
shall sentence the accused to an indeterminate sentence, the maximum term of which shall not
exceed the maximum fixed by said law and the minimum shall not be less than the minimum term
prescribed by the same." Certain classes of convicts are, by section 2 of the law, excluded from the
operation thereof. The Legislature has also enacted the Juvenile Delinquency Law (Act No. 3203)
which was subsequently amended by Act No. 3559. Section 7 of the original Act and section 1 of the
amendatory Act have become article 80 of the Revised Penal Code, amended by Act No. 4117 of
the Philippine Legislature and recently reamended by Commonwealth Act No. 99 of the National
Assembly. In this Act is again manifested the intention of the legislature to "humanize" the penal
laws. It allows, in effect, the modification in particular cases of the penalties prescribed by law by
permitting the suspension of the execution of the judgment in the discretion of the trial court, after
due hearing and after investigation of the particular circumstances of the offenses, the criminal
record, if any, of the convict, and his social history. The Legislature has in reality decreed that in
certain cases no punishment at all shall be suffered by the convict as long as the conditions of
probation are faithfully observed. It this be so, then, it cannot be said that the Probation Act comes in
conflict with the power of the Chief Executive to grant pardons and reprieves, because, to use the
language of the Supreme Court of New Mexico, "the element of punishment or the penalty for the
commission of a wrong, while to be declared by the courts as a judicial function under and within the
limits of law as announced by legislative acts, concerns solely the procedure and conduct of criminal
causes, with which the executive can have nothing to do." (Ex parteBates, supra.) In Williams vs.
State ([1926], 162 Ga., 327; 133 S.E., 843), the court upheld the constitutionality of the Georgia
probation statute against the contention that it attempted to delegate to the courts the pardoning
power lodged by the constitution in the governor alone is vested with the power to pardon after final
sentence has been imposed by the courts, the power of the courts to imposed any penalty which
may be from time to time prescribed by law and in such manner as may be defined cannot be
questioned."
We realize, of course, the conflict which the American cases disclose. Some cases hold it unlawful
for the legislature to vest in the courts the power to suspend the operation of a sentenced, by
probation or otherwise, as to do so would encroach upon the pardoning power of the executive. (In
re Webb [1895], 89 Wis., 354; 27 L.R.A., 356; 46 Am. St. Rep., 846; 62 N.W., 177; 9 Am. Crim.,
Rep., 702; State ex rel. Summerfield vs. Moran [1919], 43 Nev., 150; 182 Pac., 927; Ex
parte Clendenning [1908], 22 Okla., 108; 1 Okla. Crim. Rep., 227; 19 L.R.A. [N.S.], 1041; 132 Am.
St. Rep., 628; 97 Pac., 650; People vs. Barrett [1903], 202 Ill, 287; 67 N.E., 23; 63 L.R.A., 82; 95
Am. St. Rep., 230; Snodgrass vs. State [1912], 67 Tex. Crim. Rep., 615; 41 L. R. A. [N. S.], 1144;
150 S. W., 162; Ex parte Shelor [1910], 33 Nev., 361;111 Pac., 291; Neal vs. State [1898], 104 Ga.,
509; 42 L. R. A., 190; 69 Am. St. Rep., 175; 30 S. E. 858; State ex rel. Payne vs. Anderson [1921],
43 S. D., 630; 181 N. W., 839; People vs. Brown, 54 Mich., 15; 19 N. W., 571; States vs. Dalton
[1903], 109 Tenn., 544; 72 S. W., 456.)
Other cases, however, hold contra. (Nix vs. James [1925; C. C. A., 9th], 7 F. [2d], 590; Archer vs.
Snook [1926; D. C.], 10 F. [2d], 567; Riggs. vs. United States [1926; C. C. A. 4th], 14]) [2d], 5;
Murphy vs. States [1926], 171 Ark., 620; 286 S. W., 871; 48 A. L. R., 1189; Re Giannini [1912], 18
Cal. App., 166; 122 Pac., 831; Re Nachnaber [1928], 89 Cal. App., 530; 265 Pac., 392; Ex parte De
Voe [1931], 114 Cal. App., 730; 300 Pac., 874; People vs. Patrick [1897], 118 Cal., 332; 50 Pac.,
425; Martin vs. People [1917], 69 Colo., 60; 168 Pac., 1171; Belden vs. Hugo [1914], 88 Conn., 50;
91 A., 369, 370, 371; Williams vs. State [1926], 162 Ga., 327; 133 S. E., 843; People vs. Heise
[1913], 257 Ill., 443; 100 N. E., 1000; Parker vs. State [1893], 135 Ind., 534; 35 N. E., 179; 23 L. R.
A., 859; St. Hillarie, Petitioner [1906], 101 Me., 522; 64 Atl., 882; People vs. Stickle [1909], 156
Mich., 557; 121 N. W., 497; State vs. Fjolander [1914], 125 Minn., 529; State ex rel. Bottomnly vs.
District Court [1925], 73 Mont., 541; 237 Pac., 525; State vs. Everitt [1913], 164 N. C., 399; 79 S. E.,
274; 47 L. R. A. [N. S.], 848; State ex rel. Buckley vs. Drew [1909], 75 N. H., 402; 74 Atl., 875; State
vs. Osborne [1911], 79 N. J. Eq., 430; 82 Atl. 424; Ex parte Bates [1915], 20 N. M., 542; L. R. A.,
1916 A. 1285; 151 Pac., 698; People vs. ex rel. Forsyth vs. Court of Session [1894], 141 N. Y., 288;
23 L. R. A., 856; 36 N. E., 386; 15 Am. Crim. Rep., 675; People ex rel. Sullivan vs. Flynn [1907], 55
Misc., 639; 106 N. Y. Supp., 928; People vs. Goodrich [1914], 149 N. Y. Supp., 406; Moore vs.
Thorn [1935], 245 App. Div., 180; 281 N. Y. Supp., 49; Re Hart [1914], 29 N. D., 38; L. R. A., 1915C,
1169; 149 N. W., 568; Ex parte Eaton [1925], 29 Okla., Crim. Rep., 275; 233 P., 781; State vs. Teal
[1918], 108 S. C., 455; 95 S. E., 69; State vs. Abbot [1910], 87 S. C., 466; 33 L.R.A., [N. S.], 112; 70
S. E., 6; Ann. Cas., 1912B, 1189; Fults vs. States [1854],34 Tenn., 232; Woods vs. State [1814], 130
Tenn., 100; 169 S. W., 558; Baker vs. State [1814], 130 Tenn., 100; 169 S. W., 558; Baker vs. State
[1913],70 Tex., Crim. Rep., 618; 158 S. W., 998; Cook vs. State [1914], 73 Tex. Crim. Rep., 548;
165 S. W., 573; King vs. State [1914], 72 Tex. Crim. Rep., 394; 162 S. W., 890; Clare vs. State
[1932], 122 Tex. Crim. Rep., 394; 162 S. W., 890; Clare vs. State [1932], 122 Tex. Crim. Rep., 211;
54 S. W. [2d], 127; Re Hall [1927], 100 Vt., 197; 136 A., 24; Richardson vs. Com. [1921], 131 Va.,
802; 109 S.E., 460; State vs. Mallahan [1911], 65 Wash., 287; 118 Pac., 42; State ex rel. Tingstand
vs. Starwich [1922], 119 Wash., 561; 206 Pac., 29; 26 A. L. R., 393; 396.) We elect to follow this
long catena of authorities holding that the courts may be legally authorized by the legislature to
suspend sentence by the establishment of a system of probation however characterized. State ex
rel. Tingstand vs. Starwich ([1922], 119 Wash., 561; 206 Pac., 29; 26 A. L. R., 393), deserved
particular mention. In that case, a statute enacted in 1921 which provided for the suspension of the
execution of a sentence until otherwise ordered by the court, and required that the convicted person
be placed under the charge of a parole or peace officer during the term of such suspension, on such
terms as the court may determine, was held constitutional and as not giving the court a power in
violation of the constitutional provision vesting the pardoning power in the chief executive of the
state. (Vide, also, Re Giannini [1912], 18 Cal App., 166; 122 Pac., 831.)
Probation and pardon are not coterminous; nor are they the same. They are actually district and
different from each other, both in origin and in nature. In People ex rel. Forsyth vs. Court of Sessions
([1894], 141 N. Y., 288, 294; 36 N. E., 386, 388; 23 L. R. A., 856; 15 Am. Crim. Rep., 675), the Court
of Appeals of New York said:
. . . The power to suspend sentence and the power to grant reprieves and pardons, as
understood when the constitution was adopted, are totally distinct and different in their
nature. The former was always a part of the judicial power; the latter was always a part of the
executive power. The suspension of the sentence simply postpones the judgment of the
court temporarily or indefinitely, but the conviction and liability following it, and the civil
disabilities, remain and become operative when judgment is rendered. A pardon reaches
both the punishment prescribed for the offense and the guilt of the offender. It releases the
punishment, and blots out of existence the guilt, so that in the eye of the law, the offender is
as innocent as if he had never committed the offense. It removes the penalties and
disabilities, and restores him to all his civil rights. It makes him, as it were, a new man, and
gives him a new credit and capacity. (Ex parte Garland, 71 U. S., 4 Wall., 333; 18 Law. ed.,
366; U. S. vs. Klein, 80 U. S., 13 Wall., 128; 20 Law. ed., 519; Knote vs. U. S., 95 U. S., 149;
24 Law. ed., 442.)
The framers of the federal and the state constitutions were perfectly familiar with the
principles governing the power to grant pardons, and it was conferred by these instruments
upon the executive with full knowledge of the law upon the subject, and the words of the
constitution were used to express the authority formerly exercised by the English crown, or
by its representatives in the colonies. (Ex parte Wells, 59 U. S., 18 How., 307; 15 Law. ed.,
421.) As this power was understood, it did not comprehend any part of the judicial functions
to suspend sentence, and it was never intended that the authority to grant reprieves and
pardons should abrogate, or in any degree restrict, the exercise of that power in regard to its
own judgments, that criminal courts has so long maintained. The two powers, so distinct and
different in their nature and character, were still left separate and distinct, the one to be
exercised by the executive, and the other by the judicial department. We therefore conclude
that a statute which, in terms, authorizes courts of criminal jurisdiction to suspend sentence
in certain cases after conviction, a power inherent in such courts at common law, which
was understood when the constitution was adopted to be an ordinary judicial function, and
which, ever since its adoption, has been exercised of legislative power under the
constitution. It does not encroach, in any just sense, upon the powers of the executive, as
they have been understood and practiced from the earliest times. (Quoted with approval in
Directors of Prisons vs. Judge of First Instance of Cavite [1915], 29 Phil., 265, Carson, J.,
concurring, at pp. 294, 295.)
In probation, the probationer is in no true sense, as in pardon, a free man. He is not finally and
completely exonerated. He is not exempt from the entire punishment which the law inflicts. Under
the Probation Act, the probationer's case is not terminated by the mere fact that he is placed on
probation. Section 4 of the Act provides that the probation may be definitely terminated and the
probationer finally discharged from supervision only after the period of probation shall have been
terminated and the probation officer shall have submitted a report, and the court shall have found
that the probationer has complied with the conditions of probation. The probationer, then, during the
period of probation, remains in legal custody subject to the control of the probation officer and of
the court; and, he may be rearrested upon the non-fulfillment of the conditions of probation and,
when rearrested, may be committed to prison to serve the sentence originally imposed upon him.
(Secs. 2, 3, 5 and 6, Act No. 4221.)
The probation described in the act is not pardon. It is not complete liberty, and may be far
from it. It is really a new mode of punishment, to be applied by the judge in a proper case, in
substitution of the imprisonment and find prescribed by the criminal laws. For this reason its
application is as purely a judicial act as any other sentence carrying out the law deemed
applicable to the offense. The executive act of pardon, on the contrary, is against the criminal
law, which binds and directs the judges, or rather is outside of and above it. There is thus no
conflict with the pardoning power, and no possible unconstitutionality of the Probation Act for
this cause. (Archer vs. Snook [1926], 10 F. [2d], 567, 569.)
Probation should also be distinguished from reprieve and from commutation of the sentence.
Snodgrass vs. State ([1912], 67 Tex. Crim. Rep., 615;41 L. R. A. [N. S.], 1144; 150 S. W., 162), is
relied upon most strongly by the petitioners as authority in support of their contention that the power
to grant pardons and reprieves, having been vested exclusively upon the Chief Executive by the
Jones Law, may not be conferred by the legislature upon the courts by means of probation law
authorizing the indefinite judicial suspension of sentence. We have examined that case and found
that although the Court of Criminal Appeals of Texas held that the probation statute of the state in
terms conferred on the district courts the power to grant pardons to persons convicted of crime, it
also distinguished between suspensions sentence on the one hand, and reprieve and commutation
of sentence on the other. Said the court, through Harper, J.:
That the power to suspend the sentence does not conflict with the power of the Governor to
grant reprieves is settled by the decisions of the various courts; it being held that the
distinction between a "reprieve" and a suspension of sentence is that a reprieve postpones
the execution of the sentence to a day certain, whereas a suspension is for an indefinite
time. (Carnal vs. People, 1 Parker, Cr. R., 262; In re Buchanan, 146 N. Y., 264; 40 N. E.,
883), and cases cited in 7 Words & Phrases, pp. 6115, 6116. This law cannot be hold in
conflict with the power confiding in the Governor to grant commutations of punishment, for a
commutations is not but to change the punishment assessed to a less punishment.
In State ex rel. Bottomnly vs. District Court ([1925], 73 Mont., 541; 237 Pac., 525), the Supreme
Court of Montana had under consideration the validity of the adult probation law of the state enacted
in 1913, now found in sections 12078-12086, Revised Codes of 1921. The court held the law valid
as not impinging upon the pardoning power of the executive. In a unanimous decision penned by
Justice Holloway, the court said:
. . . . the term "pardon", "commutation", and "respite" each had a well understood meaning at
the time our Constitution was adopted, and no one of them was intended to comprehend the
suspension of the execution of the judgment as that phrase is employed in sections 12078-
12086. A "pardon" is an act of grace, proceeding from the power intrusted with the execution
of the laws which exempts the individual on whom it is bestowed from the punishment the
law inflicts for a crime he has committed (United States vs. Wilson, 7 Pet., 150; 8 Law. ed.,
640); It is a remission of guilt (State vs. Lewis, 111 La., 693; 35 So., 816), a forgiveness of
the offense (Cook vs. Middlesex County, 26 N. J. Law, 326; Ex parte Powell, 73 Ala., 517; 49
Am. Rep., 71). "Commutation" is a remission of a part of the punishment; a substitution of a
less penalty for the one originally imposed (Lee vs. Murphy, 22 Grat. [Va.] 789; 12 Am. Rep.,
563; Rich vs. Chamberlain, 107 Mich., 381; 65 N. W., 235). A "reprieve" or "respite" is the
withholding of the sentence for an interval of time (4 Blackstone's Commentaries, 394), a
postponement of execution (Carnal vs. People, 1 Parker, Cr. R. [N. Y.], 272), a temporary
suspension of execution (Butler vs. State, 97 Ind., 373).
Few adjudicated cases are to be found in which the validity of a statute similar to our section
12078 has been determined; but the same objections have been urged against parole
statutes which vest the power to parole in persons other than those to whom the power of
pardon is granted, and these statutes have been upheld quite uniformly, as a reference to
the numerous cases cited in the notes to Woods vs. State (130 Tenn., 100; 169 S. W.,558,
reported in L. R. A., 1915F, 531), will disclose. (See, also, 20 R. C. L., 524.)
We conclude that the Probation Act does not conflict with the pardoning power of the Executive. The
pardoning power, in respect to those serving their probationary sentences, remains as full and
complete as if the Probation Law had never been enacted. The President may yet pardon the
probationer and thus place it beyond the power of the court to order his rearrest and imprisonment.
(Riggs vs. United States [1926],
14 F. [2d], 5, 7.)
2. But while the Probation Law does not encroach upon the pardoning power of the executive and is
not for that reason void, does section 11 thereof constitute, as contended, an undue delegation of
legislative power?
Under the constitutional system, the powers of government are distributed among three coordinate
and substantially independent organs: the legislative, the executive and the judicial. Each of these
departments of the government derives its authority from the Constitution which, in turn, is the
highest expression of popular will. Each has exclusive cognizance of the matters within its
jurisdiction, and is supreme within its own sphere.
The power to make laws the legislative power is vested in a bicameral Legislature by the
Jones Law (sec. 12) and in a unicamiral National Assembly by the Constitution (Act. VI, sec. 1,
Constitution of the Philippines). The Philippine Legislature or the National Assembly may not escape
its duties and responsibilities by delegating that power to any other body or authority. Any attempt to
abdicate the power is unconstitutional and void, on the principle that potestas delegata non delegare
potest. This principle is said to have originated with the glossators, was introduced into English law
through a misreading of Bracton, there developed as a principle of agency, was established by Lord
Coke in the English public law in decisions forbidding the delegation of judicial power, and found its
way into America as an enlightened principle of free government. It has since become an accepted
corollary of the principle of separation of powers. (5 Encyc. of the Social Sciences, p. 66.) The
classic statement of the rule is that of Locke, namely: "The legislative neither must nor can transfer
the power of making laws to anybody else, or place it anywhere but where the people have." (Locke
on Civil Government, sec. 142.) Judge Cooley enunciates the doctrine in the following oft-quoted
language: "One of the settled maxims in constitutional law is, that the power conferred upon the
legislature to make laws cannot be delegated by that department to any other body or authority.
Where the sovereign power of the state has located the authority, there it must remain; and by the
constitutional agency alone the laws must be made until the Constitution itself is charged. The power
to whose judgment, wisdom, and patriotism this high prerogative has been intrusted cannot relieve
itself of the responsibilities by choosing other agencies upon which the power shall be devolved, nor
can it substitute the judgment, wisdom, and patriotism of any other body for those to which alone the
people have seen fit to confide this sovereign trust." (Cooley on Constitutional Limitations, 8th ed.,
Vol. I, p. 224. Quoted with approval in U. S. vs. Barrias [1908], 11 Phil., 327.) This court posits the
doctrine "on the ethical principle that such a delegated power constitutes not only a right but a duty
to be performed by the delegate by the instrumentality of his own judgment acting immediately upon
the matter of legislation and not through the intervening mind of another. (U. S. vs. Barrias, supra, at
p. 330.)
The rule, however, which forbids the delegation of legislative power is not absolute and inflexible. It
admits of exceptions. An exceptions sanctioned by immemorial practice permits the central
legislative body to delegate legislative powers to local authorities. (Rubi vs. Provincial Board of
Mindoro [1919], 39 Phil., 660; U. S. vs. Salaveria [1918], 39 Phil., 102; Stoutenburgh vs. Hennick
[1889], 129 U. S., 141; 32 Law. ed., 637; 9 Sup. Ct. Rep., 256; State vs. Noyes [1855], 30 N. H.,
279.) "It is a cardinal principle of our system of government, that local affairs shall be managed by
local authorities, and general affairs by the central authorities; and hence while the rule is also
fundamental that the power to make laws cannot be delegated, the creation of the municipalities
exercising local self government has never been held to trench upon that rule. Such legislation is not
regarded as a transfer of general legislative power, but rather as the grant of the authority to
prescribed local regulations, according to immemorial practice, subject of course to the interposition
of the superior in cases of necessity." (Stoutenburgh vs. Hennick,supra.) On quite the same
principle, Congress is powered to delegate legislative power to such agencies in the territories of the
United States as it may select. A territory stands in the same relation to Congress as a municipality
or city to the state government. (United States vs. Heinszen [1907], 206 U. S., 370; 27 Sup. Ct.
Rep., 742; 51 L. ed., 1098; 11 Ann. Cas., 688; Dorr vs. United States [1904], 195 U.S., 138; 24 Sup.
Ct. Rep., 808; 49 Law. ed., 128; 1 Ann. Cas., 697.) Courts have also sustained the delegation of
legislative power to the people at large. Some authorities maintain that this may not be done (12 C.
J., pp. 841, 842; 6 R. C. L., p. 164, citing People vs. Kennedy [1913], 207 N. Y., 533; 101 N. E., 442;
Ann. Cas., 1914C, 616). However, the question of whether or not a state has ceased to be
republican in form because of its adoption of the initiative and referendum has been held not to be a
judicial but a political question (Pacific States Tel. & Tel. Co. vs. Oregon [1912], 223 U. S., 118; 56
Law. ed., 377; 32 Sup. Cet. Rep., 224), and as the constitutionality of such laws has been looked
upon with favor by certain progressive courts, the sting of the decisions of the more conservative
courts has been pretty well drawn. (Opinions of the Justices [1894], 160 Mass., 586; 36 N. E., 488;
23 L. R. A., 113; Kiernan vs. Portland [1910], 57 Ore., 454; 111 Pac., 379; 1132 Pac., 402; 37 L. R.
A. [N. S.], 332; Pacific States Tel. & Tel. Co. vs. Oregon, supra.) Doubtless, also, legislative power
may be delegated by the Constitution itself. Section 14, paragraph 2, of article VI of the Constitution
of the Philippines provides that "The National Assembly may by law authorize the President, subject
to such limitations and restrictions as it may impose, to fix within specified limits, tariff rates, import or
export quotas, and tonnage and wharfage dues." And section 16 of the same article of the
Constitution provides that "In times of war or other national emergency, the National Assembly may
by law authorize the President, for a limited period and subject to such restrictions as it may
prescribed, to promulgate rules and regulations to carry out a declared national policy." It is beyond
the scope of this decision to determine whether or not, in the absence of the foregoing constitutional
provisions, the President could be authorized to exercise the powers thereby vested in him. Upon
the other hand, whatever doubt may have existed has been removed by the Constitution itself.
The case before us does not fall under any of the exceptions hereinabove mentioned.
The challenged section of Act No. 4221 in section 11 which reads as follows:
This Act shall apply only in those provinces in which the respective provincial boards have
provided for the salary of a probation officer at rates not lower than those now provided for
provincial fiscals. Said probation officer shall be appointed by the Secretary of Justice and
shall be subject to the direction of the Probation Office. (Emphasis ours.)
In testing whether a statute constitute an undue delegation of legislative power or not, it is usual to
inquire whether the statute was complete in all its terms and provisions when it left the hands of the
legislature so that nothing was left to the judgment of any other appointee or delegate of the
legislature. (6 R. C. L., p. 165.) In the United States vs. Ang Tang Ho ([1922], 43 Phil., 1), this court
adhered to the foregoing rule when it held an act of the legislature void in so far as it undertook to
authorize the Governor-General, in his discretion, to issue a proclamation fixing the price of rice and
to make the sale of it in violation of the proclamation a crime. (See and cf. Compaia General de
Tabacos vs. Board of Public Utility Commissioners [1916], 34 Phil., 136.) The general rule, however,
is limited by another rule that to a certain extent matters of detail may be left to be filled in by rules
and regulations to be adopted or promulgated by executive officers and administrative boards. (6 R.
C. L., pp. 177-179.)
For the purpose of Probation Act, the provincial boards may be regarded as administrative bodies
endowed with power to determine when the Act should take effect in their respective provinces.
They are the agents or delegates of the legislature in this respect. The rules governing delegation of
legislative power to administrative and executive officers are applicable or are at least indicative of
the rule which should be here adopted. An examination of a variety of cases on delegation of power
to administrative bodies will show that the ratio decidendi is at variance but, it can be broadly
asserted that the rationale revolves around the presence or absence of a standard or rule of action
or the sufficiency thereof in the statute, to aid the delegate in exercising the granted discretion.
In some cases, it is held that the standard is sufficient; in others that is insufficient; and in still others
that it is entirely lacking. As a rule, an act of the legislature is incomplete and hence invalid if it does
not lay down any rule or definite standard by which the administrative officer or board may be guided
in the exercise of the discretionary powers delegated to it. (See Schecter vs. United States [1925],
295 U. S., 495; 79 L. ed., 1570; 55 Sup. Ct. Rep., 837; 97 A.L.R., 947; People ex rel. Rice vs. Wilson
Oil Co. [1936], 364 Ill., 406; 4 N. E. [2d], 847; 107 A.L.R., 1500 and cases cited. See also R. C. L.,
title "Constitutional Law", sec 174.) In the case at bar, what rules are to guide the provincial boards
in the exercise of their discretionary power to determine whether or not the Probation Act shall apply
in their respective provinces? What standards are fixed by the Act? We do not find any and none
has been pointed to us by the respondents. The probation Act does not, by the force of any of its
provisions, fix and impose upon the provincial boards any standard or guide in the exercise of their
discretionary power. What is granted, if we may use the language of Justice Cardozo in the recent
case of Schecter, supra, is a "roving commission" which enables the provincial boards to exercise
arbitrary discretion. By section 11 if the Act, the legislature does not seemingly on its own authority
extend the benefits of the Probation Act to the provinces but in reality leaves the entire matter for the
various provincial boards to determine. In other words, the provincial boards of the various provinces
are to determine for themselves, whether the Probation Law shall apply to their provinces or not at
all. The applicability and application of the Probation Act are entirely placed in the hands of the
provincial boards. If the provincial board does not wish to have the Act applied in its province, all that
it has to do is to decline to appropriate the needed amount for the salary of a probation officer. The
plain language of the Act is not susceptible of any other interpretation. This, to our minds, is a virtual
surrender of legislative power to the provincial boards.
"The true distinction", says Judge Ranney, "is between the delegation of power to make the law,
which necessarily involves a discretion as to what it shall be, and conferring an authority or
discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be
done; to the latter no valid objection can be made." (Cincinnati, W. & Z. R. Co. vs. Clinton County
Comrs. [1852]; 1 Ohio St., 77, 88. See also, Sutherland on Statutory Construction, sec 68.) To the
same effect are the decision of this court in Municipality of Cardona vs. Municipality of
Binangonan ([1917], 36 Phil., 547); Rubi vs. Provincial Board of Mindoro ([1919],39 Phil., 660)
and Cruz vs. Youngberg ([1931], 56 Phil., 234). In the first of these cases, this court sustained the
validity of the law conferring upon the Governor-General authority to adjust provincial and municipal
boundaries. In the second case, this court held it lawful for the legislature to direct non-Christian
inhabitants to take up their habitation on unoccupied lands to be selected by the provincial governor
and approved by the provincial board. In the third case, it was held proper for the legislature to vest
in the Governor-General authority to suspend or not, at his discretion, the prohibition of the
importation of the foreign cattle, such prohibition to be raised "if the conditions of the country make
this advisable or if deceased among foreign cattle has ceased to be a menace to the agriculture and
livestock of the lands."
It should be observed that in the case at bar we are not concerned with the simple transference of
details of execution or the promulgation by executive or administrative officials of rules and
regulations to carry into effect the provisions of a law. If we were, recurrence to our own decisions
would be sufficient. (U. S. vs. Barrias [1908], 11 Phil., 327; U.S. vs. Molina [1914], 29 Phil., 119;
Alegre vs. Collector of Customs [1929], 53 Phil., 394; Cebu Autobus Co. vs. De Jesus [1931], 56
Phil., 446; U. S. vs. Gomez [1915], 31 Phil., 218; Rubi vs. Provincial Board of Mindoro [1919], 39
Phil., 660.)
It is connected, however, that a legislative act may be made to the effect as law after it leaves the
hands of the legislature. It is true that laws may be made effective on certain contingencies, as by
proclamation of the executive or the adoption by the people of a particular community (6 R. C. L.,
116, 170-172; Cooley, Constitutional Limitations, 8th ed., Vol. I, p. 227). In Wayman vs. Southard
([1825], 10 Wheat. 1; 6 Law. ed., 253), the Supreme Court of the United State ruled that the
legislature may delegate a power not legislative which it may itself rightfully exercise.(Vide, also,
Dowling vs. Lancashire Ins. Co. [1896], 92 Wis., 63; 65 N. W., 738; 31 L. R. A., 112.) The power to
ascertain facts is such a power which may be delegated. There is nothing essentially legislative in
ascertaining the existence of facts or conditions as the basis of the taking into effect of a law. That is
a mental process common to all branches of the government. (Dowling vs. Lancashire Ins.
Co., supra; In re Village of North Milwaukee [1896], 93 Wis., 616; 97 N.W., 1033; 33 L.R.A., 938;
Nash vs. Fries [1906], 129 Wis., 120; 108 N.W., 210; Field vs. Clark [1892], 143 U.S., 649; 12 Sup.
Ct., 495; 36 Law. ed., 294.) Notwithstanding the apparent tendency, however, to relax the rule
prohibiting delegation of legislative authority on account of the complexity arising from social and
economic forces at work in this modern industrial age (Pfiffner, Public Administration [1936] ch. XX;
Laski, "The Mother of Parliaments", foreign Affairs, July, 1931, Vol. IX, No. 4, pp. 569-579; Beard,
"Squirt-Gun Politics", in Harper's Monthly Magazine, July, 1930, Vol. CLXI, pp. 147, 152), the
orthodox pronouncement of Judge Cooley in his work on Constitutional Limitations finds restatement
in Prof. Willoughby's treatise on the Constitution of the United States in the following language
speaking of declaration of legislative power to administrative agencies: "The principle which permits
the legislature to provide that the administrative agent may determine when the circumstances are
such as require the application of a law is defended upon the ground that at the time this authority is
granted, the rule of public policy, which is the essence of the legislative act, is determined by the
legislature. In other words, the legislature, as it its duty to do, determines that, under given
circumstances, certain executive or administrative action is to be taken, and that, under other
circumstances, different of no action at all is to be taken. What is thus left to the administrative
official is not the legislative determination of what public policy demands, but simply the
ascertainment of what the facts of the case require to be done according to the terms of the law by
which he is governed." (Willoughby on the Constitution of the United States, 2nd ed., Vol. II, p.
1637.) In Miller vs. Mayer, etc., of New York [1883], 109 U.S., 3 Sup. Ct. Rep., 228; 27 Law. ed.,
971, 974), it was said: "The efficiency of an Act as a declaration of legislative will must, of course,
come from Congress, but the ascertainment of the contingency upon which the Act shall take effect
may be left to such agencies as it may designate." (See, also, 12 C.J., p. 864; State vs. Parker
[1854], 26 Vt., 357; Blanding vs. Burr [1859], 13 Cal., 343, 258.) The legislature, then may provide
that a contingencies leaving to some other person or body the power to determine when the
specified contingencies has arisen. But, in the case at bar, the legislature has not made the
operation of the Prohibition Act contingent upon specified facts or conditions to be ascertained by
the provincial board. It leaves, as we have already said, the entire operation or non-operation of the
law upon the provincial board. the discretion vested is arbitrary because it is absolute and unlimited.
A provincial board need not investigate conditions or find any fact, or await the happening of any
specified contingency. It is bound by no rule, limited by no principle of expendiency announced by
the legislature. It may take into consideration certain facts or conditions; and, again, it may not. It
may have any purpose or no purpose at all. It need not give any reason whatsoever for refusing or
failing to appropriate any funds for the salary of a probation officer. This is a matter which rest
entirely at its pleasure. The fact that at some future time we cannot say when the provincial
boards may appropriate funds for the salaries of probation officers and thus put the law into
operation in the various provinces will not save the statute. The time of its taking into effect, we
reiterate, would yet be based solely upon the will of the provincial boards and not upon the
happening of a certain specified contingency, or upon the ascertainment of certain facts or
conditions by a person or body other than legislature itself.
The various provincial boards are, in practical effect, endowed with the power of suspending the
operation of the Probation Law in their respective provinces. In some jurisdiction, constitutions
provided that laws may be suspended only by the legislature or by its authority. Thus, section 28,
article I of the Constitution of Texas provides that "No power of suspending laws in this state shall be
exercised except by the legislature"; and section 26, article I of the Constitution of Indiana provides
"That the operation of the laws shall never be suspended, except by authority of the General
Assembly." Yet, even provisions of this sort do not confer absolute power of suspension upon the
legislature. While it may be undoubted that the legislature may suspend a law, or the execution or
operation of a law, a law may not be suspended as to certain individuals only, leaving the law to be
enjoyed by others. The suspension must be general, and cannot be made for individual cases or for
particular localities. In Holden vs. James ([1814], 11 Mass., 396; 6 Am. Dec., 174, 177, 178), it was
said:
By the twentieth article of the declaration of rights in the constitution of this commonwealth, it
is declared that the power of suspending the laws, or the execution of the laws, ought never
to be exercised but by the legislature, or by authority derived from it, to be exercised in such
particular cases only as the legislature shall expressly provide for. Many of the articles in that
declaration of rights were adopted from the Magna Charta of England, and from the bill of
rights passed in the reign of William and Mary. The bill of rights contains an enumeration of
the oppressive acts of James II, tending to subvert and extirpate the protestant religion, and
the laws and liberties of the kingdom; and the first of them is the assuming and exercising a
power of dispensing with and suspending the laws, and the execution of the laws without
consent of parliament. The first article in the claim or declaration of rights contained in the
statute is, that the exercise of such power, by legal authority without consent of parliament, is
illegal. In the tenth section of the same statute it is further declared and enacted, that "No
dispensation by non obstante of or to any statute, or part thereof, should be allowed; but the
same should be held void and of no effect, except a dispensation be allowed of in such
statute." There is an implied reservation of authority in the parliament to exercise the power
here mentioned; because, according to the theory of the English Constitution, "that absolute
despotic power, which must in all governments reside somewhere," is intrusted to the
parliament: 1 Bl. Com., 160.
The principles of our government are widely different in this particular. Here the sovereign
and absolute power resides in the people; and the legislature can only exercise what is
delegated to them according to the constitution. It is obvious that the exercise of the power in
question would be equally oppressive to the subject, and subversive of his right to protection,
"according to standing laws," whether exercised by one man or by a number of men. It
cannot be supposed that the people when adopting this general principle from the English bill
of rights and inserting it in our constitution, intended to bestow by implication on the general
court one of the most odious and oppressive prerogatives of the ancient kings of England. It
is manifestly contrary to the first principles of civil liberty and natural justice, and to the spirit
of our constitution and laws, that any one citizen should enjoy privileges and advantages
which are denied to all others under like circumstances; or that ant one should be subject to
losses, damages, suits, or actions from which all others under like circumstances are
exempted.
To illustrate the principle: A section of a statute relative to dogs made the owner of any dog liable to
the owner of domestic animals wounded by it for the damages without proving a knowledge of it
vicious disposition. By a provision of the act, power was given to the board of supervisors to
determine whether or not during the current year their county should be governed by the provisions
of the act of which that section constituted a part. It was held that the legislature could not confer that
power. The court observed that it could no more confer such a power than to authorize the board of
supervisors of a county to abolish in such county the days of grace on commercial paper, or to
suspend the statute of limitations. (Slinger vs. Henneman [1875], 38 Wis., 504.) A similar statute in
Missouri was held void for the same reason in State vs. Field ([1853, 17 Mo., 529;59 Am. Dec., 275.)
In that case a general statute formulating a road system contained a provision that "if the county
court of any county should be of opinion that the provisions of the act should not be enforced, they
might, in their discretion, suspend the operation of the same for any specified length of time, and
thereupon the act should become inoperative in such county for the period specified in such order;
and thereupon order the roads to be opened and kept in good repair, under the laws theretofore in
force." Said the court: ". . . this act, by its own provisions, repeals the inconsistent provisions of a
former act, and yet it is left to the county court to say which act shall be enforce in their county. The
act does not submit the question to the county court as an original question, to be decided by that
tribunal, whether the act shall commence its operation within the county; but it became by its own
terms a law in every county not excepted by name in the act. It did not, then, require the county court
to do any act in order to give it effect. But being the law in the county, and having by its provisions
superseded and abrogated the inconsistent provisions of previous laws, the county court is . . .
empowered, to suspend this act and revive the repealed provisions of the former act. When the
question is before the county court for that tribunal to determine which law shall be in force, it is urge
before us that the power then to be exercised by the court is strictly legislative power, which under
our constitution, cannot be delegated to that tribunal or to any other body of men in the state. In the
present case, the question is not presented in the abstract; for the county court of Saline county,
after the act had been for several months in force in that county, did by order suspend its operation;
and during that suspension the offense was committed which is the subject of the present indictment
. . . ." (See Mitchell vs. State [1901], 134 Ala., 392; 32 S., 687.)
True, the legislature may enact laws for a particular locality different from those applicable to other
localities and, while recognizing the force of the principle hereinabove expressed, courts in may
jurisdiction have sustained the constitutionality of the submission of option laws to the vote of the
people. (6 R.C.L., p. 171.) But option laws thus sustained treat of subjects purely local in character
which should receive different treatment in different localities placed under different circumstances.
"They relate to subjects which, like the retailing of intoxicating drinks, or the running at large of cattle
in the highways, may be differently regarded in different localities, and they are sustained on what
seems to us the impregnable ground, that the subject, though not embraced within the ordinary
powers of municipalities to make by-laws and ordinances, is nevertheless within the class of public
regulations, in respect to which it is proper that the local judgment should control." (Cooley on
Constitutional Limitations, 5th ed., p. 148.) So that, while we do not deny the right of local self-
government and the propriety of leaving matters of purely local concern in the hands of local
authorities or for the people of small communities to pass upon, we believe that in matters of general
of general legislation like that which treats of criminals in general, and as regards the general subject
of probation, discretion may not be vested in a manner so unqualified and absolute as provided in
Act No. 4221. True, the statute does not expressly state that the provincial boards may suspend the
operation of the Probation Act in particular provinces but, considering that, in being vested with the
authority to appropriate or not the necessary funds for the salaries of probation officers, they thereby
are given absolute discretion to determine whether or not the law should take effect or operate in
their respective provinces, the provincial boards are in reality empowered by the legislature to
suspend the operation of the Probation Act in particular provinces, the Act to be held in abeyance
until the provincial boards should decide otherwise by appropriating the necessary funds. The
validity of a law is not tested by what has been done but by what may be done under its provisions.
(Walter E. Olsen & Co. vs. Aldanese and Trinidad [1922], 43 Phil., 259; 12 C. J., p. 786.)
It in conceded that a great deal of latitude should be granted to the legislature not only in the
expression of what may be termed legislative policy but in the elaboration and execution thereof.
"Without this power, legislation would become oppressive and yet imbecile." (People vs. Reynolds, 5
Gilman, 1.) It has been said that popular government lives because of the inexhaustible reservoir of
power behind it. It is unquestionable that the mass of powers of government is vested in the
representatives of the people and that these representatives are no further restrained under our
system than by the express language of the instrument imposing the restraint, or by particular
provisions which by clear intendment, have that effect. (Angara vs. Electoral Commission [1936], 35
Off. Ga., 23; Schneckenburger vs. Moran [1936], 35 Off. Gaz., 1317.) But, it should be borne in mind
that a constitution is both a grant and a limitation of power and one of these time-honored limitations
is that, subject to certain exceptions, legislative power shall not be delegated.
We conclude that section 11 of Act No. 4221 constitutes an improper and unlawful delegation of
legislative authority to the provincial boards and is, for this reason, unconstitutional and void.
3. It is also contended that the Probation Act violates the provisions of our Bill of Rights which
prohibits the denial to any person of the equal protection of the laws (Act. III, sec. 1 subsec. 1.
Constitution of the Philippines.)
This basic individual right sheltered by the Constitution is a restraint on all the tree grand
departments of our government and on the subordinate instrumentalities and subdivision thereof,
and on many constitutional power, like the police power, taxation and eminent domain. The equal
protection of laws, sententiously observes the Supreme Court of the United States, "is a pledge of
the protection of equal laws." (Yick Wo vs. Hopkins [1886], 118 U. S., 356; 30 Law. ed., 220; 6 Sup.
Ct. Rep., 10464; Perley vs. North Carolina, 249 U. S., 510; 39 Sup. Ct. Rep., 357; 63 Law. ed., 735.)
Of course, what may be regarded as a denial of the equal protection of the laws in a question not
always easily determined. No rule that will cover every case can be formulated. (Connolly vs. Union
Sewer Pipe Co. [1902], 184, U. S., 540; 22 Sup. Ct., Rep., 431; 46 Law. ed., 679.) Class legislation
discriminating against some and favoring others in prohibited. But classification on a reasonable
basis, and nor made arbitrarily or capriciously, is permitted. (Finely vs. California [1911], 222 U. S.,
28; 56 Law. ed., 75; 32 Sup. Ct. Rep., 13; Gulf. C. & S. F. Ry Co. vs. Ellis [1897], 165 U. S., 150; 41
Law. ed., 666; 17 Sup. Ct. Rep., 255; Smith, Bell & Co. vs. Natividad [1919], 40 Phil., 136.) The
classification, however, to be reasonable must be based on substantial distinctions which make real
differences; it must be germane to the purposes of the law; it must not be limited to existing
conditions only, and must apply equally to each member of the class. (Borgnis vs. Falk. Co. [1911],
147 Wis., 327, 353; 133 N. W., 209; 3 N. C. C. A., 649; 37 L. R. A. [N. S.], 489; State vs. Cooley, 56
Minn., 540; 530-552; 58 N. W., 150; Lindsley vs. Natural Carbonic Gas Co.[1911], 220 U. S., 61, 79,
55 Law. ed., 369, 377; 31 Sup. Ct. Rep., 337; Ann. Cas., 1912C, 160; Lake Shore & M. S. R. Co. vs.
Clough [1917], 242 U.S., 375; 37 Sup. Ct. Rep., 144; 61 Law. ed., 374; Southern Ry. Co. vs. Greene
[1910], 216 U. S., 400; 30 Sup. Ct. Rep., 287; 54 Law. ed., 536; 17 Ann. Cas., 1247; Truax vs.
Corrigan [1921], 257 U. S., 312; 12 C. J., pp. 1148, 1149.)
In the case at bar, however, the resultant inequality may be said to flow from the unwarranted
delegation of legislative power, although perhaps this is not necessarily the result in every case.
Adopting the example given by one of the counsel for the petitioners in the course of his oral
argument, one province may appropriate the necessary fund to defray the salary of a probation
officer, while another province may refuse or fail to do so. In such a case, the Probation Act would
be in operation in the former province but not in the latter. This means that a person otherwise
coming within the purview of the law would be liable to enjoy the benefits of probation in one
province while another person similarly situated in another province would be denied those same
benefits. This is obnoxious discrimination. Contrariwise, it is also possible for all the provincial
boards to appropriate the necessary funds for the salaries of the probation officers in their respective
provinces, in which case no inequality would result for the obvious reason that probation would be in
operation in each and every province by the affirmative action of appropriation by all the provincial
boards. On that hypothesis, every person coming within the purview of the Probation Act would be
entitled to avail of the benefits of the Act. Neither will there be any resulting inequality if no province,
through its provincial board, should appropriate any amount for the salary of the probation officer
which is the situation now and, also, if we accept the contention that, for the purpose of the
Probation Act, the City of Manila should be considered as a province and that the municipal board of
said city has not made any appropriation for the salary of the probation officer. These different
situations suggested show, indeed, that while inequality may result in the application of the law and
in the conferment of the benefits therein provided, inequality is not in all cases the necessary result.
But whatever may be the case, it is clear that in section 11 of the Probation Act creates a situation in
which discrimination and inequality are permitted or allowed. There are, to be sure, abundant
authorities requiring actual denial of the equal protection of the law before court should assume the
task of setting aside a law vulnerable on that score, but premises and circumstances considered, we
are of the opinion that section 11 of Act No. 4221 permits of the denial of the equal protection of the
law and is on that account bad. We see no difference between a law which permits of such denial. A
law may appear to be fair on its face and impartial in appearance, yet, if it permits of unjust and
illegal discrimination, it is within the constitutional prohibitions. (By analogy, Chy Lung vs. Freeman
[1876], 292 U. S., 275; 23 Law. ed., 550; Henderson vs. Mayor [1876], 92 U. S., 259; 23 Law. ed.,
543;Ex parte Virginia [1880], 100 U. S., 339; 25 Law. ed., 676; Neal vs. Delaware [1881], 103 U. S.,
370; 26 Law. ed., 567; Soon Hing vs. Crowley [1885], 113 U. S., 703; 28 Law. ed., 1145, Yick Wo
vs. Hopkins [1886],118 U. S., 356; 30 Law. ed., 220; Williams vs. Mississippi [1897], 170 U. S., 218;
18 Sup. Ct. Rep., 583; 42 Law. ed., 1012; Bailey vs. Alabama [1911], 219 U. S., 219; 31 Sup. Ct.
Rep. 145; 55 Law. ed., Sunday Lake Iron Co. vs. Wakefield [1918], 247 U. S., 450; 38 Sup. Ct. Rep.,
495; 62 Law. ed., 1154.) In other words, statutes may be adjudged unconstitutional because of their
effect in operation (General Oil Co. vs. Clain [1907], 209 U. S., 211; 28 Sup. Ct. Rep., 475; 52 Law.
ed., 754; State vs. Clement Nat. Bank [1911], 84 Vt., 167; 78 Atl., 944; Ann. Cas., 1912D, 22). If the
law has the effect of denying the equal protection of the law it is unconstitutional. (6 R. C. L. p. 372;
Civil Rights Cases, 109 U. S., 3; 3 Sup. Ct. Rep., 18; 27 Law. ed., 835; Yick Wo vs. Hopkins, supra;
State vs. Montgomery, 94 Me., 192; 47 Atl., 165; 80 A. S. R., 386; State vs. Dering, 84 Wis., 585; 54
N. W., 1104; 36 A. S. R., 948; 19 L. R. A., 858.) Under section 11 of the Probation Act, not only may
said Act be in force in one or several provinces and not be in force in other provinces, but one
province may appropriate for the salary of the probation officer of a given year and have probation
during that year and thereafter decline to make further appropriation, and have no probation is
subsequent years. While this situation goes rather to the abuse of discretion which delegation
implies, it is here indicated to show that the Probation Act sanctions a situation which is intolerable in
a government of laws, and to prove how easy it is, under the Act, to make the guaranty of the
equality clause but "a rope of sand". (Brewer, J. Gulf C. & S. F. Ry. Co. vs. Ellis [1897], 165 U. S.,
150 154; 41 Law. ed., 666; 17 Sup. Ct. Rep., 255.)lawph!1.net
Great reliance is placed by counsel for the respondents on the case of Ocampo vs. United States
([1914], 234 U. S., 91; 58 Law. ed., 1231). In that case, the Supreme Court of the United States
affirmed the decision of this court (18 Phil., 1) by declining to uphold the contention that there was a
denial of the equal protection of the laws because, as held in Missouri vs. Lewis (Bowman vs. Lewis)
decided in 1880 (101 U. S., 220; 25 Law. ed., 991), the guaranty of the equality clause does not
require territorial uniformity. It should be observed, however, that this case concerns the right to
preliminary investigations in criminal cases originally granted by General Orders No. 58. No question
of legislative authority was involved and the alleged denial of the equal protection of the laws was
the result of the subsequent enactment of Act No. 612, amending the charter of the City of Manila
(Act No. 813) and providing in section 2 thereof that "in cases triable only in the court of first instance
of the City of Manila, the defendant . . . shall not be entitled as of right to a preliminary examination
in any case where the prosecuting attorney, after a due investigation of the facts . . . shall have
presented an information against him in proper form . . . ." Upon the other hand, an analysis of the
arguments and the decision indicates that the investigation by the prosecuting attorney although
not in the form had in the provinces was considered a reasonable substitute for the City of Manila,
considering the peculiar conditions of the city as found and taken into account by the legislature
itself.
Reliance is also placed on the case of Missouri vs. Lewis, supra. That case has reference to a
situation where the constitution of Missouri permits appeals to the Supreme Court of the state from
final judgments of any circuit court, except those in certain counties for which counties the
constitution establishes a separate court of appeals called St. Louis Court of Appeals. The provision
complained of, then, is found in the constitution itself and it is the constitution that makes the
apportionment of territorial jurisdiction.
We are of the opinion that section 11 of the Probation Act is unconstitutional and void because it is
also repugnant to equal-protection clause of our Constitution.
Section 11 of the Probation Act being unconstitutional and void for the reasons already stated, the
next inquiry is whether or not the entire Act should be avoided.
In seeking the legislative intent, the presumption is against any mutilation of a statute, and
the courts will resort to elimination only where an unconstitutional provision is interjected into
a statute otherwise valid, and is so independent and separable that its removal will leave the
constitutional features and purposes of the act substantially unaffected by the process.
(Riccio vs. Hoboken, 69 N. J. Law., 649, 662; 63 L. R. A., 485; 55 Atl., 1109, quoted in
Williams vs. Standard Oil Co. [1929], 278 U.S., 235, 240; 73 Law. ed., 287, 309; 49 Sup. Ct.
Rep., 115; 60 A. L. R., 596.) In Barrameda vs. Moir ([1913], 25 Phil., 44, 47), this court stated
the well-established rule concerning partial invalidity of statutes in the following language:
. . . where part of the a statute is void, as repugnant to the Organic Law, while another part is
valid, the valid portion, if separable from the valid, may stand and be enforced. But in order
to do this, the valid portion must be in so far independent of the invalid portion that it is fair to
presume that the Legislative would have enacted it by itself if they had supposed that they
could not constitutionally enact the other. (Mutual Loan Co. vs. Martell, 200 Mass., 482; 86
N. E., 916; 128 A. S. R., 446; Supervisors of Holmes Co. vs. Black Creek Drainage District,
99 Miss., 739; 55 Sou., 963.) Enough must remain to make a complete, intelligible, and valid
statute, which carries out the legislative intent. (Pearson vs. Bass. 132 Ga., 117; 63 S. E.,
798.) The void provisions must be eliminated without causing results affecting the main
purpose of the Act, in a manner contrary to the intention of the Legislature. (State vs. A. C. L.
R., Co., 56 Fla., 617, 642; 47 Sou., 969; Harper vs. Galloway, 58 Fla., 255; 51 Sou., 226; 26
L. R. A., N. S., 794; Connolly vs. Union Sewer Pipe Co., 184 U. S., 540, 565; People vs.
Strassheim, 240 Ill., 279, 300; 88 N. E., 821; 22 L. R. A., N. S., 1135; State vs. Cognevich,
124 La., 414; 50 Sou., 439.) The language used in the invalid part of a 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.
(State vs. Junkin, 85 Neb., 1; 122 N. W., 473; 23 L. R. A., N. S., 839; Vide, also,. U. S., vs.
Rodriguez [1918], 38 Phil., 759; Pollock vs. Farmers' Loan and Trust Co. [1895], 158 U. S.,
601, 635; 39 Law. ed., 1108, 1125; 15 Sup. Ct. Rep., 912; 6 R.C.L., 121.)
It is contended that even if section 11, which makes the Probation Act applicable only in those
provinces in which the respective provincial boards provided for the salaries of probation officers
were inoperative on constitutional grounds, the remainder of the Act would still be valid and may be
enforced. We should be inclined to accept the suggestions but for the fact that said section is, in our
opinion, is inseparably linked with the other portions of the Act that with the elimination of the section
what would be left is the bare idealism of the system, devoid of any practical benefit to a large
number of people who may be deserving of the intended beneficial result of that system. The clear
policy of the law, as may be gleaned from a careful examination of the whole context, is to make the
application of the system dependent entirely upon the affirmative action of the different provincial
boards through appropriation of the salaries for probation officers at rates not lower than those
provided for provincial fiscals. Without such action on the part of the various boards, no probation
officers would be appointed by the Secretary of Justice to act in the provinces. The Philippines is
divided or subdivided into provinces and it needs no argument to show that if not one of the
provinces and this is the actual situation now appropriate the necessary fund for the salary of a
probation officer, probation under Act No. 4221 would be illusory. There can be no probation without
a probation officer. Neither can there be a probation officer without the probation system.
Section 2 of the Acts provides that the probation officer shall supervise and visit the probationer.
Every probation officer is given, as to the person placed in probation under his care, the powers of
the police officer. It is the duty of the probation officer to see that the conditions which are imposed
by the court upon the probationer under his care are complied with. Among those conditions, the
following are enumerated in section 3 of the Act:
That the probationer (a) shall indulge in no injurious or vicious habits;
(b) Shall avoid places or persons of disreputable or harmful character;
(c) Shall report to the probation officer as directed by the court or probation officers;
(d) Shall permit the probation officer to visit him at reasonable times at his place of abode or
elsewhere;
(e) Shall truthfully answer any reasonable inquiries on the part of the probation officer
concerning his conduct or condition; "(f) Shall endeavor to be employed regularly; "(g) Shall
remain or reside within a specified place or locality;
(f) Shall make reparation or restitution to the aggrieved parties for actual damages or losses
caused by his offense;
(g) Shall comply with such orders as the court may from time to time make; and
(h) Shall refrain from violating any law, statute, ordinance, or any by-law or regulation,
promulgated in accordance with law.
The court is required to notify the probation officer in writing of the period and terms of probation.
Under section 4, it is only after the period of probation, the submission of a report of the probation
officer and appropriate finding of the court that the probationer has complied with the conditions of
probation that probation may be definitely terminated and the probationer finally discharged from
supervision. Under section 5, if the court finds that there is non-compliance with said conditions, as
reported by the probation officer, it may issue a warrant for the arrest of the probationer and said
probationer may be committed with or without bail. Upon arraignment and after an opportunity to be
heard, the court may revoke, continue or modify the probation, and if revoked, the court shall order
the execution of the sentence originally imposed. Section 6 prescribes the duties of probation
officers: "It shall be the duty of every probation officer to furnish to all persons placed on probation
under his supervision a statement of the period and conditions of their probation, and to instruct
them concerning the same; to keep informed concerning their conduct and condition; to aid and
encourage them by friendly advice and admonition, and by such other measures, not inconsistent
with the conditions imposed by court as may seem most suitable, to bring about improvement in their
conduct and condition; to report in writing to the court having jurisdiction over said probationers at
least once every two months concerning their conduct and condition; to keep records of their work;
make such report as are necessary for the information of the Secretary of Justice and as the latter
may require; and to perform such other duties as are consistent with the functions of the probation
officer and as the court or judge may direct. The probation officers provided for in this Act may act as
parole officers for any penal or reformatory institution for adults when so requested by the authorities
thereof, and, when designated by the Secretary of Justice shall act as parole officer of persons
released on parole under Act Number Forty-one Hundred and Three, without additional
compensation."
It is argued, however, that even without section 11 probation officers maybe appointed in the
provinces under section 10 of Act which provides as follows:
There is hereby created in the Department of Justice and subject to its supervision and
control, a Probation Office under the direction of a Chief Probation Officer to be appointed by
the Governor-General with the advise and consent of the Senate who shall receive a salary
of four eight hundred pesos per annum. To carry out this Act there is hereby appropriated out
of any funds in the Insular Treasury not otherwise appropriated, the sum of fifty thousand
pesos to be disbursed by the Secretary of Justice, who is hereby authorized to appoint
probation officers and the administrative personnel of the probation officer under civil service
regulations from among those who possess the qualifications, training and experience
prescribed by the Bureau of Civil Service, and shall fix the compensation of such probation
officers and administrative personnel until such positions shall have been included in the
Appropriation Act.
But the probation officers and the administrative personnel referred to in the foregoing section are
clearly not those probation officers required to be appointed for the provinces under section 11. It
may be said, reddendo singula singulis, that the probation officers referred to in section 10 above-
quoted are to act as such, not in the various provinces, but in the central office known as the
Probation Office established in the Department of Justice, under the supervision of the Chief
Probation Officer. When the law provides that "the probation officer" shall investigate and make
reports to the court (secs. 1 and 4); that "the probation officer" shall supervise and visit the
probationer (sec. 2; sec. 6, par. d); that the probationer shall report to the "probationer officer" (sec.
3, par. c.), shall allow "the probationer officer" to visit him (sec. 3, par. d), shall truthfully answer any
reasonable inquiries on the part of "the probation officer" concerning his conduct or condition (sec. 3,
par. 4); that the court shall notify "the probation officer" in writing of the period and terms of probation
(sec. 3, last par.), it means the probation officer who is in charge of a particular probationer in a
particular province. It never could have been intention of the legislature, for instance, to require the
probationer in Batanes, to report to a probationer officer in the City of Manila, or to require a
probation officer in Manila to visit the probationer in the said province of Batanes, to place him under
his care, to supervise his conduct, to instruct him concerning the conditions of his probation or to
perform such other functions as are assigned to him by law.
That under section 10 the Secretary of Justice may appoint as many probation officers as there are
provinces or groups of provinces is, of course possible. But this would be arguing on what the law
may be or should be and not on what the law is. Between is and ought there is a far cry. The wisdom
and propriety of legislation is not for us to pass upon. We may think a law better otherwise than it is.
But much as has been said regarding progressive interpretation and judicial legislation we decline to
amend the law. We are not permitted to read into the law matters and provisions which are not there.
Not for any purpose not even to save a statute from the doom of invalidity.
Upon the other hand, the clear intention and policy of the law is not to make the Insular Government
defray the salaries of probation officers in the provinces but to make the provinces defray them
should they desire to have the Probation Act apply thereto. The sum of P50,000, appropriated "to
carry out the purposes of this Act", is to be applied, among other things, for the salaries of probation
officers in the central office at Manila. These probation officers are to receive such compensations
as the Secretary of Justice may fix "until such positions shall have been included in the Appropriation
Act". It was the intention of the legislature to empower the Secretary of Justice to fix the salaries of
the probation officers in the provinces or later on to include said salaries in an appropriation act.
Considering, further, that the sum of P50,000 appropriated in section 10 is to cover, among other
things, the salaries of the administrative personnel of the Probation Office, what would be left of the
amount can hardly be said to be sufficient to pay even nominal salaries to probation officers in the
provinces. We take judicial notice of the fact that there are 48 provinces in the Philippines and we do
not think it is seriously contended that, with the fifty thousand pesos appropriated for the central
office, there can be in each province, as intended, a probation officer with a salary not lower than
that of a provincial fiscal. If this a correct, the contention that without section 11 of Act No. 4221 said
act is complete is an impracticable thing under the remainder of the Act, unless it is conceded that in
our case there can be a system of probation in the provinces without probation officers.
Probation as a development of a modern penology is a commendable system. Probation laws have
been enacted, here and in other countries, to permit what modern criminologist call the
"individualization of the punishment", the adjustment of the penalty to the character of the criminal
and the circumstances of his particular case. It provides a period of grace in order to aid in the
rehabilitation of a penitent offender. It is believed that, in any cases, convicts may be reformed and
their development into hardened criminals aborted. It, therefore, takes advantage of an opportunity
for reformation and avoids imprisonment so long as the convicts gives promise of reform. (United
States vs. Murray [1925], 275 U. S., 347 357, 358; 72 Law. ed., 309; 312, 313; 48 Sup. Ct. Rep.,
146; Kaplan vs. Hecht, 24 F. [2d], 664, 665.) The Welfare of society is its chief end and aim. The
benefit to the individual convict is merely incidental. But while we believe that probation is
commendable as a system and its implantation into the Philippines should be welcomed, we are
forced by our inescapable duty to set the law aside because of the repugnancy to our fundamental
law.
In arriving at this conclusion, we have endeavored to consider the different aspects presented by
able counsel for both parties, as well in their memorandums as in their oral argument. We have
examined the cases brought to our attention, and others we have been able to reach in the short
time at our command for the study and deliberation of this case. In the examination of the cases and
in then analysis of the legal principles involved we have inclined to adopt the line of action which in
our opinion, is supported better reasoned authorities and is more conducive to the general welfare.
(Smith, Bell & Co. vs. Natividad [1919], 40 Phil., 136.) Realizing the conflict of authorities, we have
declined to be bound by certain adjudicated cases brought to our attention, except where the point
or principle is settled directly or by clear implication by the more authoritative pronouncements of the
Supreme Court of the United States. This line of approach is justified because:
(a) The constitutional relations between the Federal and the State governments of the United
States and the dual character of the American Government is a situation which does not
obtain in the Philippines;
(b) The situation of s state of the American Union of the District of Columbia with reference to
the Federal Government of the United States is not the situation of the province with respect
to the Insular Government (Art. I, sec. 8 cl. 17 and 10th Amendment, Constitution of the
United States; Sims vs. Rives, 84 Fed. [2d], 871),
(c) The distinct federal and the state judicial organizations of the United States do not
embrace the integrated judicial system of the Philippines (Schneckenburger vs. Moran
[1936], 35 Off. Gaz., p. 1317);
(d) "General propositions do not decide concrete cases" (Justice Holmes in Lochner vs. New
York [1904], 198 U. S., 45, 76; 49 Law. ed., 937, 949) and, "to keep pace with . . . new
developments of times and circumstances" (Chief Justice Waite in Pensacola Tel. Co. vs.
Western Union Tel. Co. [1899], 96 U. S., 1, 9; 24 Law. ed., 708; Yale Law Journal, Vol. XXIX,
No. 2, Dec. 1919, 141, 142), fundamental principles should be interpreted having in view
existing local conditions and environment.
Act No. 4221 is hereby declared unconstitutional and void and the writ of prohibition is, accordingly,
granted. Without any pronouncement regarding costs. So ordered.
Avancea, C.J., Imperial, Diaz and Concepcion, JJ., concur.
Villa-real and Abad Santos, JJ., concur in the result.
EN BANC
[G.R. No. 152895. June 15, 2004]
OFELIA V. ARCETA, petitioner, vs. The Honorable
MA. CELESTINA C. MANGROBANG, Presiding Judge, Branch 54,
Metropolitan Trial Court of Navotas, Metro Manila, respondent.
[G.R. No. 153151. June 15, 2004]
GLORIA S. DY, petitioner, vs. The Honorable EDWIN B. RAMIZO,
Presiding Judge, Branch 53, Metropolitan Trial Court of
Caloocan City, respondent.
R E S O L U T I O N
QUISUMBING, J .:
For resolution are two consolidated
[1]
petitions under Rule 65 of the Rules of Court,
for certiorari, prohibition and mandamus, with prayers for a temporary restraining
order. Both assail the constitutionality of the Bouncing Checks Law, also known as
Batas Pambansa Bilang 22.
In G.R. No. 152895, petitioner Ofelia V. Arceta prays that we order the Metropolitan
Trial Court (MeTC) of Navotas, Metro Manila, Branch 54, to cease and desist from
hearing Criminal Case No. 1599-CR for violation of B.P. Blg. 22, and then dismiss the
case against her. In G.R. No. 153151, petitioner Gloria S. Dy also prays that this Court
order the MeTC of Caloocan City to cease and desist from proceeding with Criminal
Case No. 212183, and subsequently dismiss the case against her. In fine, however, we
find that what both petitioners seek is that the Court should revisit and abandon the
doctrine laid down in Lozano v. Martinez,
[2]
which upheld the validity of the Bouncing
Checks Law.
The facts of these cases are not in dispute.
1. G.R. No. 152895
The City Prosecutor of Navotas, Metro Manila charged Ofelia V. Arceta with
violating B.P. Blg. 22 in an Information, which was docketed as Criminal Case No.
1599-CR. The accusatory portion of said Information reads:
That on or about the 16
th
day of September 1998, in Navotas, Metro Manila, and within the
jurisdiction of this Honorable Court, the above-named accused, did then and there wilfully,
unlawfully and feloniously make or draw and issue to OSCAR R. CASTRO, to apply on account
or for value the check described below:
Check No : 00082270
Drawn Against : The Region Bank
In the Amount of : P740,000.00
Date : December 21, 1998
Payable to : Cash
said accused well-knowing that at the time of issue Ofelia V. Arceta did not have sufficient funds
or credit with the drawee bank for the payment, which check when presented for payment within
ninety (90) days from the date thereof was subsequently dishonored by the drawee bank for
reason DRAWN AGAINST INSUFFICIENT FUNDS, and despite receipt of notice of such
dishonor, the accused failed to pay said payee with the face amount of said check or to make
arrangement for full payment thereof within five (5) banking days after receiving notice.
CONTRARY TO LAW.
[3]

Arceta did not move to have the charge against her dismissed or the Information
quashed on the ground that B.P. Blg. 22 was unconstitutional. She reasoned out that
with the Lozanodoctrine still in place, such a move would be an exercise in futility for it
was highly unlikely that the trial court would grant her motion and thus go against
prevailing jurisprudence.
On October 21, 2002,
[4]
Arceta was arraigned and pleaded not guilty to the
charge. However, she manifested that her arraignment should be without prejudice to
the present petition or to any other actions she would take to suspend proceedings in
the trial court.
Arceta then filed the instant petition.
2. G.R. No. 153151
The Office of the City Prosecutor of Caloocan filed a charge sheet against Gloria
S. Dy for violation of the Bouncing Checks Law, docketed by the MeTC of Caloocan
City as Criminal Case No. 212183. Dy allegedly committed the offense in this wise:
That on or about the month of January 2000 in Caloocan City, Metro Manila, Philippines and
within the jurisdiction of this Honorable Court, the above-named accused, did then and there
wilfully, unlawfully and feloniously make and issue Check No. 0000329230 drawn against
PRUDENTIAL BANK in the amount of P2,500,000.00 dated January 19, 2000 to apply for
value in favor of ANITA CHUA well knowing at the time of issue that she has no sufficient
funds in or credit with the drawee bank for the payment of such check in full upon its
presentment which check was subsequently dishonored for the reason ACCOUNT CLOSED
and with intent to defraud failed and still fails to pay the said complainant the amount
of P2,500,000.00 despite receipt of notice from the drawee bank that said check has been
dishonored and had not been paid.
Contrary to Law.
[5]

Like Arceta, Dy made no move to dismiss the charges against her on the ground
that B.P. Blg. 22 was unconstitutional. Dy likewise believed that any move on her part
to quash the indictment or to dismiss the charges on said ground would fail in view of
the Lozano ruling. Instead, she filed a petition with this Court invoking its power of
judicial review to have the said law voided for Constitutional infirmity.
Both Arceta and Dy raise the following identical issues for our resolution:
[a] Does section 1 really penalize the act of issuing a check subsequently dishonored by the
bank for lack of funds?
[b] What is the effect if the dishonored check is not paid pursuant to section 2 of BP 22?
[c] What is the effect if it is so paid?
[d] Does section 2 make BP 22 a debt collecting law under threat of imprisonment?
[e] Does BP 22 violate the constitutional proscription against imprisonment for non-payment
of debt?
[f] Is BP 22 a valid exercise of the police power of the state?
[6]

After minute scrutiny of petitioners submissions, we find that the basic issue being
raised in these special civil actions for certiorari, prohibition, and mandamus concern
the unconstitutionality or invalidity of B.P. Blg. 22. Otherwise put, the petitions
constitute an oblique attack on the constitutionality of the Bouncing Checks Law, a
matter already passed upon by the Court through Justice (later Chief Justice) Pedro
Yap almost two decades ago. Petitioners add, however, among the pertinent issues
one based on the observable but worrisome transformation of certain metropolitan trial
courts into seeming collection agencies of creditors whose complaints now clog the
court dockets.
But let us return to basics. When the issue of unconstitutionality of a legislative act
is raised, it is the established doctrine that the Court may exercise its power of judicial
review only if the following requisites are present: (1) an actual and appropriate case
and controversy exists; (2) a personal and substantial interest of the party raising the
constitutional question; (3) the exercise of judicial review is pleaded at the earliest
opportunity; and (4) the constitutional question raised is the very lis mota of the
case.
[7]
Only when these requisites are satisfied may the Court assume jurisdiction over
a question of unconstitutionality or invalidity of an act of Congress. With due regard to
counsels spirited advocacy in both cases, we are unable to agree that
the abovecited requisites have been adequately met.
Perusal of these petitions reveals that they are primarily anchored on Rule 65,
Section 1
[8]
of the 1997 Rules of Civil Procedure. In a special civil action of certiorari the
only question that may be raised is whether or not the respondent has acted without or
in excess of jurisdiction or with grave abuse of discretion.
[9]
Yet nowhere in these
petitions is there any allegation that the respondent judges acted with grave abuse of
discretion amounting to lack or excess of jurisdiction. A special civil action for certiorari
will prosper only if a grave abuse of discretion is manifested.
[10]

Noteworthy, the instant petitions are conspicuously devoid of any attachments or
annexes in the form of a copy of an order, decision, or resolution issued by the
respondent judges so as to place them understandably within the ambit of Rule
65. What are appended to the petitions are only copies of the Informations in the
respective cases, nothing else. Evidently, these petitions for a writ of certiorari,
prohibition and mandamus do not qualify as the actual and appropriate cases
contemplated by the rules as the first requisite for the exercise of this Courts power of
judicial review. For as the petitions clearly show on their faces petitioners have not
come to us with sufficient cause of action.
Instead, it appears to us that herein petitioners have placed the cart before the
horse, figuratively speaking. Simply put, they have ignored the hierarchy of courts
outlined in Rule 65, Section 4
[11]
of the 1997 Rules of Civil Procedure. Seeking judicial
review at the earliest opportunity does not mean immediately elevating the matter to this
Court. Earliest opportunity means that the question of unconstitutionality of the act in
question should have been immediately raised in the proceedings in the court
below. Thus, the petitioners should have moved to quash the separate indictments or
moved to dismiss the cases in the proceedings in the trial courts on the ground of
unconstitutionality of B.P. Blg. 22. But the records show that petitioners failed to initiate
such moves in the proceedings below. Needless to emphasize, this Court could not
entertain questions on the invalidity of a statute where that issue was not specifically
raised, insisted upon, and adequately argued.
[12]
Taking into account the early stage of
the trial proceedings below, the instant petitions are patently premature.
Nor do we find the constitutional question herein raised to be the
very lis mota presented in the controversy below. Every law has in its favor the
presumption of constitutionality, and to justify its nullification, there must be a clear and
unequivocal breach of the Constitution, and not one that is doubtful, speculative or
argumentative.
[13]
We have examined the contentions of the petitioners carefully; but they
still have to persuade us that B.P. Blg. 22 by itself or in its implementation transgressed
a provision of the Constitution. Even the thesis of petitioner Dythat the present
economic and financial crisis should be a basis to declare the Bouncing Checks Law
constitutionally infirm deserves but scant consideration. As we stressed in Lozano, it is
precisely during trying times that there exists a most compelling reason to strengthen
faith and confidence in the financial system and any practice tending to destroy
confidence in checks as currency substitutes should be deterred, to prevent havoc in
the trading and financial communities. Further, while indeed the metropolitan trial
courts may be burdened immensely by bouncing checks cases now, that fact is
immaterial to the alleged invalidity of the law being assailed. The solution to the
clogging of dockets in lower courts lies elsewhere.
WHEREFORE, the instant petitions are DISMISSED for utter lack of merit.
SO ORDERED.
Davide, Jr., C.J., Puno, Vitug, Panganiban, Ynares-Santiago, Sandoval-Gutierrez,
Carpio, Austria-Martinez, Carpio-Morales, Callejo, Sr., Azcuna, and Tinga, JJ., concur.
Corona, J., on official leave.

Republic of the Philippines
Supreme Court
Manila

SECOND DIVISION

CLAUDIO S. YAP,
Petitioner,


- versus -


THENAMARIS SHIPS MANAGEMENT
and INTERMARE MARITIME AGENCIES,
INC.,
Respondents.
G.R. No. 179532
Present:

CARPIO, J.,
Chairperson,
NACHURA,
PERALTA,
ABAD, and
MENDOZA, JJ.
Promulgated:
May 30, 2011
x------------------------------------------------------------------------------------x


DECISION

NACHURA, J.:


Before this Court is a Petition for Review on Certiorari
[1]
under Rule 45 of
the Rules of Civil Procedure, seeking the reversal of the Court of Appeals (CA)
Decision
[2]
dated February 28, 2007, which affirmed with modification the National
Labor Relations Commission (NLRC) resolution
[3]
dated April 20, 2005.

The undisputed facts, as found by the CA, are as follows:


[Petitioner] Claudio S. Yap was employed as electrician of the vessel, M/T
SEASCOUT on 14 August 2001 by Intermare Maritime Agencies, Inc. in behalf of its
principal, Vulture Shipping Limited. The contract of employment entered into
by Yap and Capt. Francisco B. Adviento, the General Manager of Intermare, was for a
duration of 12 months. On 23 August 2001,Yap boarded M/T SEASCOUT and
commenced his job as electrician. However, on or about 08 November 2001, the vessel
was sold. The Philippine Overseas Employment Administration (POEA) was informed
about the sale on 06 December 2001 in a letter signed by Capt. Adviento. Yap, along
with the other crewmembers, was informed by the Master of their vessel that the same
was sold and will be scrapped. They were also informed about the Advisory sent by
Capt. Constatinou, which states, among others:

PLEASE ASK YR OFFICERS AND RATINGS IF THEY WISH TO BE TRANSFERRED TO
OTHER VESSELS AFTER VESSEL S DELIVERY (GREEK VIA ATHENS-PHILIPINOS
VIA MANILA
FOR CREW NOT WISH TRANSFER TO DECLARE THEIR PROSPECTED TIME FOR
REEMBARKATION IN ORDER TO SCHEDULE THEM ACCLY

Yap received his seniority bonus, vacation bonus, extra bonus along with the
scrapping bonus. However, with respect to the payment of his wage, he refused to
accept the payment of one-month basic wage. He insisted that he was entitled to the
payment of the unexpired portion of his contract since he was illegally dismissed from
employment. He alleged that he opted for immediate transfer but none was made.

[Respondents], for their part, contended that Yap was not illegally dismissed. They
alleged that following the sale of the M/T SEASCOUT, Yap signed off from the vessel on
10 November 2001 and was paid his wages corresponding to the months he worked or
until 10 November 2001 plus his seniority bonus, vacation bonus and extra bonus. They
further alleged that Yaps employment contract was validly terminated due to the sale
of the vessel and no arrangement was made for Yaps transfer to Thenamaris other
vessels.
[4]



Thus, Claudio S. Yap (petitioner) filed a complaint for Illegal Dismissal with
Damages and Attorneys Fees before the Labor Arbiter (LA). Petitioner claimed
that he was entitled to the salaries corresponding to the unexpired portion of his
contract. Subsequently, he filed an amended complaint, impleading Captain
Francisco Adviento of respondents Intermare Maritime Agencies, Inc. (Intermare)
and Thenamaris Ships Management (respondents), together with C.J. Martionos,
Interseas Trading and Financing Corporation, and Vulture Shipping Limited/Stejo
Shipping Limited.

On July 26, 2004, the LA rendered a decision
[5]
in favor of petitioner, finding
the latter to have been constructively and illegally dismissed by
respondents. Moreover, the LA found that respondents acted in bad faith when
they assured petitioner of re-embarkation and required him to produce an
electrician certificate during the period of his contract, but actually he was not
able to board one despite of respondents numerous vessels. Petitioner made
several follow-ups for his re-embarkation but respondents failed to heed his plea;
thus, petitioner was forced to litigate in order to vindicate his rights. Lastly, the LA
opined that since the unexpired portion of petitioners contract was less than one
year, petitioner was entitled to his salaries for the unexpired portion of his
contract for a period of nine months. The LA disposed, as follows:


WHEREFORE, in view of the foregoing, a decision is hereby rendered declaring
complainant to have been constructively dismissed. Accordingly, respondents
Intermare Maritime Agency Incorporated, Thenamaris Ships Mgt., and Vulture Shipping
Limited are ordered to pay jointly and severally complainant Claudio S. Yap the sum of
$12,870.00 or its peso equivalent at the time of payment. In addition, moral damages
of ONE HUNDRED THOUSAND PESOS (P100,000.00) and exemplary damages of FIFTY
THOUSAND PESOS (P50,000.00) are awarded plus ten percent (10%) of the total award
as attorneys fees.

Other money claims are DISMISSED for lack of merit.

SO ORDERED.
[6]



Aggrieved, respondents sought recourse from the NLRC.

In its decision
[7]
dated January 14, 2005, the NLRC affirmed the LAs findings
that petitioner was indeed constructively and illegally dismissed; that
respondents bad faith was evident on their wilful failure to transfer petitioner to
another vessel; and that the award of attorneys fees was warranted. However,
the NLRC held that instead of an award of salaries corresponding to nine months,
petitioner was only entitled to salaries for three months as provided under
Section 10
[8]
of Republic Act (R.A.) No. 8042,
[9]
as enunciated in our ruling
in Marsaman Manning Agency, Inc. v. National Labor Relations
Commission.
[10]
Hence, the NLRC ruled in this wise:

WHEREFORE, premises considered, the decision of the Labor Arbiter finding the
termination of complainant illegal is hereby AFFIRMED with a MODIFICATION.
Complainant*s+ salary for the unexpired portion of his contract should only be limited to
three (3) months basic salary.

Respondents Intermare Maritime Agency, Inc.[,] Vulture Shipping Limited and
Thenamaris Ship Management are hereby ordered to jointly and severally pay
complainant, the following:

1. Three (3) months basic salary US$4,290.00 or its peso equivalent at the
time of actual payment.
2. Moral damages P100,000.00
3. Exemplary damages P50,000.00
4. Attorneys fees equivalent to 10% of the total monetary award.

SO ORDERED.
[11]


Respondents filed a Motion for Partial Reconsideration,
[12]
praying for the
reversal and setting aside of the NLRC decision, and that a new one be rendered
dismissing the complaint. Petitioner, on the other hand, filed his own Motion for
Partial Reconsideration,
[13]
praying that he be paid the nine (9)-month basic
salary, as awarded by the LA.

On April 20, 2005, a resolution
[14]
was rendered by the NLRC, affirming the
findings of Illegal Dismissal and respondents failure to transfer petitioner to
another vessel. However, finding merit in petitioners arguments, the NLRC
reversed its earlier Decision, holding that there can be no choice to grant only
three (3) months salary for every year of the unexpired term because there is no
full year of unexpired term which this can be applied. Hence


WHEREFORE, premises considered, complainants Motion for Partial
Reconsideration is hereby granted. The award of three (3) months basic salary in the
sum of US$4,290.00 is hereby modified in that complainant is entitled to his salary for
the unexpired portion of employment contract in the sum of US$12,870.00 or its peso
equivalent at the time of actual payment.

All aspect of our January 14, 2005 Decision STANDS.

SO ORDERED.
[15]



Respondents filed a Motion for Reconsideration, which the NLRC denied.

Undaunted, respondents filed a petition for certiorari
[16]
under Rule 65
of the Rules of Civil Procedure before the CA. On February 28, 2007, the CA
affirmed the findings and ruling of the LA and the NLRC that petitioner was
constructively and illegally dismissed. The CA held that respondents failed to
show that the NLRC acted without statutory authority and that its findings were
not supported by law, jurisprudence, and evidence on record. Likewise, the CA
affirmed the lower agencies findings that the advisory of Captain Constantinou,
taken together with the other documents and additional requirements imposed
on petitioner, only meant that the latter should have been re-embarked. In the
same token, the CA upheld the lower agencies unanimous finding of bad faith,
warranting the imposition of moral and exemplary damages and attorneys fees.
However, the CA ruled that the NLRC erred in sustaining the LAs interpretation of
Section 10 of R.A. No. 8042. In this regard, the CA relied on the clause or for
three months for every year of the unexpired term, whichever is less provided in
the 5
th
paragraph of Section 10 of R.A. No. 8042 and held:

In the present case, the employment contract concerned has a term of one year
or 12 months which commenced on August 14, 2001. However, it was preterminated
without a valid cause. [Petitioner] was paid his wages for the corresponding months he
worked until the 10
th
of November. Pursuant to the provisions of Sec. 10, [R.A. No.]
8042, therefore, the option of three months for every year of the unexpired term is
applicable.
[17]


Thus, the CA provided, to wit:

WHEREFORE, premises considered, this Petition for Certiorari
is DENIED. The Decision dated January 14, 2005, and Resolutions, dated April 20, 2005
and July 29, 2005, respectively, of public respondent National Labor Relations
Commission-Fourth Division, Cebu City, in NLRC No. V-000038-04 (RAB VIII (OFW)-04-01-
0006) are hereby AFFIRMED with the MODIFICATION that private respondent is
entitled to three (3) months of basic salary computed at US$4,290.00 or its peso
equivalent at the time of actual payment.

Costs against Petitioners.
[18]

Both parties filed their respective motions for reconsideration, which the
CA, however, denied in its Resolution
[19]
dated August 30, 2007.

Unyielding, petitioner filed this petition, raising the following issues:

1) Whether or not Section 10 of R.A. [No.] 8042, to the extent that it affords
an illegally dismissed migrant worker the lesser benefit of salaries for *the+
unexpired portion of his employment contract or for three (3) months for
every year of the unexpired term, whichever is less is constitutional; and

2) Assuming that it is, whether or not the Court of Appeals gravely erred in granting
petitioner only three (3) months backwages when his unexpired term of 9 months
is far short of the every year of the unexpired term threshold.
[20]



In the meantime, while this case was pending before this Court, we
declared as unconstitutional the clause or for three months for every year of the
unexpired term, whichever is less provided in the 5
th
paragraph of Section 10 of
R.A. No. 8042 in the case of Serrano v. Gallant Maritime Services, Inc.
[21]
on March
24, 2009.

Apparently, unaware of our ruling in Serrano, petitioner claims that the
5
th
paragraph of Section 10, R.A. No. 8042, is violative of Section 1,
[22]
Article III
and Section 3,
[23]
Article XIII of the Constitution to the extent that it gives an erring
employer the option to pay an illegally dismissed migrant worker only three
months for every year of the unexpired term of his contract; that said provision of
law has long been a source of abuse by callous employers against migrant
workers; and that said provision violates the equal protection clause under the
Constitution because, while illegally dismissed local workers are guaranteed
under the Labor Code of reinstatement with full backwages computed from the
time compensation was withheld from them up to their actual reinstatement,
migrant workers, by virtue of Section 10 of R.A. No. 8042, have to waive nine
months of their collectible backwages every time they have a year of unexpired
term of contract to reckon with. Finally, petitioner posits that, assuming said
provision of law is constitutional, the CA gravely abused its discretion when it
reduced petitioners backwages from nine months to three months as his nine-
month unexpired term cannot accommodate the lesser relief of three months for
every year of the unexpired term.
[24]


On the other hand, respondents, aware of our ruling in Serrano, aver that
our pronouncement of unconstitutionality of the clause or for three months for
every year of the unexpired term, whichever is less provided in the 5
th
paragraph
of Section 10 of R.A. No. 8042 in Serrano should not apply in this case because
Section 10 of R.A. No. 8042 is a substantive law that deals with the rights and
obligations of the parties in case of Illegal Dismissal of a migrant worker and is not
merely procedural in character. Thus, pursuant to the Civil Code, there should be
no retroactive application of the law in this case. Moreover, respondents
asseverate that petitioners tanker allowance of US$130.00 should not be
included in the computation of the award as petitioners basic salary, as provided
under his contract, was only US$1,300.00. Respondents submit that the CA erred
in its computation since it included the said tanker allowance. Respondents opine
that petitioner should be entitled only to US$3,900.00 and not to US$4,290.00, as
granted by the CA. Invoking Serrano, respondents claim that the tanker allowance
should be excluded from the definition of the term salary. Also, respondents
manifest that the full sum ofP878,914.47 in Intermares bank account was
garnished and subsequently withdrawn and deposited with the NLRC Cashier of
Tacloban City on February 14, 2007. On February 16, 2007, while this case was
pending before the CA, the LA issued an Order releasing the amount
of P781,870.03 to petitioner as his award, together with the sum of P86,744.44 to
petitioners former lawyer as attorneys fees, and the amount of P3,570.00 as
execution and deposit fees. Thus, respondents pray that the instant petition be
denied and that petitioner be directed to return to Intermare the sum of
US$8,970.00 or its peso equivalent.
[25]


On this note, petitioner counters that this new issue as to the inclusion of
the tanker allowance in the computation of the award was not raised by
respondents before the LA, the NLRC and the CA, nor was it raised in respondents
pleadings other than in their Memorandum before this Court, which should not
be allowed under the circumstances.
[26]


The petition is impressed with merit.

Prefatorily, it bears emphasis that the unanimous finding of the LA, the
NLRC and the CA that the dismissal of petitioner was illegal is not disputed.
Likewise not disputed is the tribunals unanimous finding of bad faith on the part
of respondents, thus, warranting the award of moral and exemplary damages and
attorneys fees. What remains in issue, therefore, is the constitutionality of the
5
th
paragraph of Section 10 of R.A. No. 8042 and, necessarily, the proper
computation of the lump-sum salary to be awarded to petitioner by reason of his
illegal dismissal.

Verily, we have already declared in Serrano that the clause or for three
months for every year of the unexpired term, whichever is less provided in the
5
th
paragraph of Section 10 of R.A. No. 8042 is unconstitutional for being violative
of the rights of Overseas Filipino Workers (OFWs) to equal protection of the laws.
In an exhaustive discussion of the intricacies and ramifications of the said clause,
this Court, in Serrano, pertinently held:

The Court concludes that the subject clause contains a suspect classification in
that, in the computation of the monetary benefits of fixed-term employees who are
illegally discharged, it imposes a 3-month cap on the claim of OFWs with an unexpired
portion of one year or more in their contracts, but none on the claims of other OFWs or
local workers with fixed-term employment. The subject clause singles out one
classification of OFWs and burdens it with a peculiar disadvantage.
[27]



Moreover, this Court held therein that the subject clause does not state or
imply any definitive governmental purpose; hence, the same violates not just
therein petitioners right to equal protection, but also his right to substantive due
process under Section 1, Article III of the Constitution.
[28]
Consequently, petitioner
therein was accorded his salaries for the entire unexpired period of nine months
and 23 days of his employment contract, pursuant to law and jurisprudence prior
to the enactment of R.A. No. 8042.

We have already spoken. Thus, this case should not be different
from Serrano.

As a general rule, an unconstitutional act is not a law; it confers no rights; it
imposes no duties; it affords no protection; it creates no office; it is inoperative as
if it has not been passed at all. The general rule is supported by Article 7 of the
Civil Code, which provides:

Art. 7. Laws are repealed only by subsequent ones, and their violation or non-
observance shall not be excused by disuse or custom or practice to the contrary.


The doctrine of operative fact serves as an exception to the
aforementioned general rule. In Planters Products, Inc. v. Fertiphil
Corporation,
[29]
we held:

The doctrine of operative fact, as an exception to the general rule, only applies
as a matter of equity and fair play. It nullifies the effects of an unconstitutional law by
recognizing that the existence of a statute prior to a determination of
unconstitutionality is an operative fact and may have consequences which cannot
always be ignored. The past cannot always be erased by a new judicial declaration.

The doctrine is applicable when a declaration of unconstitutionality will impose
an undue burden on those who have relied on the invalid law. Thus, it was applied to a
criminal case when a declaration of unconstitutionality would put the accused in double
jeopardy or would put in limbo the acts done by a municipality in reliance upon a law
creating it.
[30]


Following Serrano, we hold that this case should not be included in the
aforementioned exception. After all, it was not the fault of petitioner that he lost
his job due to an act of illegal dismissal committed by respondents. To rule
otherwise would be iniquitous to petitioner and other OFWs, and would, in effect,
send a wrong signal that principals/employers and recruitment/manning agencies
may violate an OFWs security of tenure which an employment contract embodies
and actually profit from such violation based on an unconstitutional provision of
law.

In the same vein, we cannot subscribe to respondents postulation that the
tanker allowance of US$130.00 should not be included in the computation of the
lump-sum salary to be awarded to petitioner.

First. It is only at this late stage, more particularly in their Memorandum,
that respondents are raising this issue. It was not raised before the LA, the NLRC,
and the CA. They did not even assail the award accorded by the CA, which
computed the lump-sum salary of petitioner at the basic salary of US$1,430.00,
and which clearly included the US$130.00 tanker allowance. Hence, fair play,
justice, and due process dictate that this Court cannot now, for the first time on
appeal, pass upon this question. Matters not taken up below cannot be raised for
the first time on appeal. They must be raised seasonably in the proceedings
before the lower tribunals. Questions raised on appeal must be within the issues
framed by the parties; consequently, issues not raised before the lower tribunals
cannot be raised for the first time on appeal.
[31]


Second. Respondents invocation of Serrano is unavailing. Indeed, we made
the following pronouncements in Serrano, to wit:

The word salaries in Section 10(5) does not include overtime and leave pay.
For seafarers like petitioner, DOLE Department Order No. 33, series 1996, provides a
Standard Employment Contract of Seafarers, in which salary is understood as the basic
wage, exclusive of overtime, leave pay and other bonuses; whereas overtime pay is
compensation for all work performed in excess of the regular eight hours, and holiday
pay is compensation for any work performed on designated rest days and holidays.
[32]



A close perusal of the contract reveals that the tanker allowance of
US$130.00 was not categorized as a bonus but was rather encapsulated in the
basic salary clause, hence, forming part of the basic salary of petitioner.
Respondents themselves in their petition for certiorari before the CA averred that
petitioners basic salary, pursuant to the contract, was US$1,300.00 + US$130.00
tanker allowance.
[33]
If respondents intended it differently, the contract per
se should have indicated that said allowance does not form part of the basic
salary or, simply, the contract should have separated it from the basic salary
clause.

A final note.

We ought to be reminded of the plight and sacrifices of our
OFWs. In Olarte v. Nayona,
[34]
this Court held that:

Our overseas workers belong to a disadvantaged class. Most of them come from
the poorest sector of our society. Their profile shows they live in suffocating slums,
trapped in an environment of crimes. Hardly literate and in ill health, their only hope lies
in jobs they find with difficulty in our country. Their unfortunate circumstance makes
them easy prey to avaricious employers. They will climb mountains, cross the seas,
endure slave treatment in foreign lands just to survive. Out of despondence, they will
work under sub-human conditions and accept salaries below the minimum. The least we
can do is to protect them with our laws.


WHEREFORE, the Petition is GRANTED. The Court of Appeals Decision
dated February 28, 2007 and Resolution dated August 30, 2007 are
hereby MODIFIED to the effect that petitioner is AWARDED his salaries for the
entire unexpired portion of his employment contract consisting of nine months
computed at the rate of US$1,430.00 per month. All other awards are
hereby AFFIRMED. No costs.

SECOND DIVISION


BARANGAY
CAPTAIN BEDA
TORRECAMPO,

G.R. No. 188296
Petitioner,

Present:


- versus -




CARPIO, J., Chairperson,
NACHURA,
PERALTA,
ABAD, and
MENDOZA, JJ.
METROPOLITAN
WATERWORKS


AND SEWERAGE
SYSTEM,
Diosdado Jose Allado,
Administrator,
DEPARTMENT OF
PUBLIC WORKS
AND HIGHWAYS,
Secretary
Hermogenes Ebdane,
Respondents.


Promulgated:

May 30, 2011
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x


D E C I S I O N

CARPIO, J .:

The Case

G.R. No. 188296 is a petition for injunction
1
with prayer for issuance of a Temporary
Restraining Order and Writ of Preliminary Injunction. Barangay Captain
Beda Torrecampo(Torrecampo) of Barangay Matandang Balara, Quezon City, in his
capacity as taxpayer and on behalf of his barangay constituents and eight million
Metro Manila residents, filed the present petition against respondents Manila
Waterworks and Sewerage System (MWSS) and Diosdado Jose M. Allado (Allado) in
his official capacity as Administrator, and the Department of Public Works and
Highways (DPWH) and Hermogenes Ebdane (Ebdane) in his official capacity as
Secretary. Torrecampo sought to enjoin respondents from implementing the
Circumferential Road 5 (C-5) Extension Project over Lot Nos. 42-B-2-A, 42-A-6 and
42-A-4 (subject lots),
2
all of which are owned by the MWSS. The C-5 Road Extension
Project will connect the South Luzon Expressway (SLEX) to the North Luzon
Expressway (NLEX).

The Facts

In his petition,
3
Torrecampo narrated that his constituents approached him on 30 June
2009 to report that personnel and heavy equipment from the DPWH entered a portion
of BarangayMatandang Balara to implement the C-5 Road Extension Project over
Lot Nos. 42-A-4, 42-A-6 and 42-A-4.
4
Torrecampo alleged that if the MWSS and the
DPWH are allowed to continue and complete the C-5 Road Extension Project
within Barangay Matandang Balara, three aqueducts of the MWSS which supply
water to eight million Metro Manila residents will be put at great
risk. Torrecampo insisted that the RIPADA area, consisting
of Pook Ricarte, Pook Polaris and Pook Dagohoy, located in Barangay University of
the Philippines (UP), Diliman, Quezon City, is a better alternative to subject lots.


Torrecampo filed the present petition on 1 July 2009, the very next day after the
DPWHs entry. We considered the allegations and the issues in the petition and
required respondents to comment thereon. We also issued a status quo order, effective
from 1 July 2009 and continuing until further orders. We set the urgent application for
ex-parte temporary restraining order and/or writ of preliminary injunction for hearing
on 6 July 2009.
5


Pertinent portions of the resolution which summarized the hearing read:

Atty. Alfredo L. Villamor, Jr. avers that the instant petition for injunction seeks to enjoin the
implementation of the DPWH C-5 Road Extension Project to connect the South Luzon
Expressway (SLEX) to the North Luzon Expressway (NLEX), alleging that the project would
result to grave injustice and irreparable injury to petitioner and the eight million residents of
Metro Manila considering that the impending DPWH road project includes the portion known as
Tandang Sora Section located within petitioners barangay, underneath which are the
aqueducts supplying water to eight million residents of Metro Manila, which aqueducts might be
damaged and thus imperil and disrupt water supply to all Metro Manila residents; that the
petition raises the fundamental right to health under Sec. 15, Art. II of the 1987 Constitution; and
that this petition for injunction has to be filed directly with the Supreme Court rather than with
the lower court, pursuant to Section 3 of R.A. 8975 An Act to Ensure the Expeditious
Implementation and Completion of Government Infrastructure Projects by Prohibiting Lower
Courts from Issuing Temporary Restraining Orders, Preliminary Injunctions or Preliminary
Mandatory Injunctions, Providing Penalties for Violations.

Assistant Solicitor General Eric Remegio Panga, lead counsel for respondent DPWH, asserts
among others, that petitioners case does not fall within the exception cited in R.A. 8975 and that
under the principle of hierarchy of courts, the petition should have been filed with the Regional
Trial Court. Said counsel likewise clarified that the proposed C-5 Road Expansion Project shall
not be undertaken pending completion by the DPWH of studies and tests on the safety concerns,
including the determination of the existence and actual location of the aqueducts in the area.


Atty. Alberto C. Agra for respondent MWSS finds as premature the filing of the petition for
injunction as there is yet no road expansion project to be implemented; that the project as
conceived has yet to pass prior review by the MWSS after submission by the DPWH of a
detailed study as to actual engineering design and actual tests for the conduct of any construction
work; that the entry of DPWH in the area is to conduct study on the soil and on the location of
the aqueducts; and that under the premises, there is yet no justiciable controversy as alleged by
petitioner.
6


After the respective counsels presented their arguments and answered queries from
the members of the Court, we resolved to require all parties to submit their
memoranda within ten days from the hearing. We also deliberated on the prayer for a
temporary restraining order, and resolved to lift the status quo order of 1 July 2009
considering that no grave injustice or irreparable injury would arise.
In their memorandum,
7
the MWSS and Allado, through the OGCC, explained the
purpose of the MWSS and its participation in the C-5 Road Extension Project. Under
Republic Act No. 6234 (the MWSS Charter), the MWSS owns and has jurisdiction,
supervision and control over all waterworks and sewerage systems within the
development path of the expanding Metro Manila area, Rizal province, and a portion
of Cavite province.
8
The MWSS installed three sub-terrain aqueducts that connect raw
water from the La Mesa Dam to the BalaraFiltration Plant located
in Barangay Matandang Balara, Diliman, Quezon City. Portions of these aqueducts
are located underneath Commonwealth Avenue in Quezon City, and are buried in
varying depths because of the uneven surface of Quezon Citys landscape.


Presidential Proclamation No. 1395 (PP 1395), issued by then President
Gloria Macapagal-Arroyo on 25 September 2007, declared and reserved certain
parcels of land of the RIPADA area for two purposes:

1. As an access highway for the new road alignment of the C-5 [Road] Extension Project that
will connect the NLEX and SLEX with an area of THIRTY SEVEN THOUSAND EIGHT
HUNDRED TWENTY (37,820) SQUARE METERS, more or less.

2. As housing facilities for deserving and bonafide occupants, to include those active and retired
UP employees presently residing in the said communities with an area of FORTY SIX
THOUSAND FIVE HUNDRED SIXTY THREE (46,563) SQUARE METERS, more or less.
9


The land reserved by PP 1395 has a total area of 84,383 square meters, and is bounded
by University Valley Subdivision on the North, Katipunan Avenue on the
South, Tandang SoraAvenue on the East, and Dagohoy Street on the West. Lot 42-C-
8-B has an area of 37,820 square meters, while Lot 42-C-8-C has an area of 46,563
square meters. PP 1395 directed the Metropolitan Manila Development Authority
(MMDA), under the direct supervision of the Office of the President, to coordinate
with DPWH for detailed engineering plans and designs for the access highway as well
as with the Land Registration Authority and Land Management Bureau of the
Department of Environment and Natural Resources for a comprehensive development
plan for housing facilities for the affected families in the areas.
10
At the time of
issuance of PP 1395, MWSS did not have any participation in the C-5 Extension
Project.

On 3 December 2007, then MMDA Chairperson Bayani F. Fernando (Chairperson
Fernando) wrote to then MWSS Administrator Lorenzo H. Jamora and proposed the
utilization of certain MWSS properties for constructing Medium Rise Buildings
(MRBs) for the affected families who will be displaced by the C-5 Road Extension
Project.
11


The Board of Trustees of the MWSS, in a meeting held on 19 June 2008, resolved to
uphold the position of the MWSS management that the MWSS could not accede to
Chairperson Fernandos request. Portions of Resolution No. 2008-120 read:

WHEREAS, Lot 42-B-2-A consisting of 9,018.20 square meters, more or less, is one of the
operational facilities turned over to [Manila Water Company, Inc.] MWCI. Three (3) main
aqueducts [two-1575 mm. diameter Reinforced Concrete Pipes AQ1 and AQ2 (constructed in
1928 and 1955, respectively), and one 2010 mm. Reinforced Concrete Pipe, Hexagonal]
conveying raw water from La Mesa Dam to Balara Treatment Plants are located underneath the
subject area. The 60-meter wide ROW was designed to provide enough space for the
rehabilitation, upgrading, and maintenance of the aqueducts which have been in existence for
more than 50 years, and maintenance thereof has to be undertaken to ensure sustainability of
water supply. The area should also be insulated from disruptions and disturbances such as
increased traffic, construction activities, and heavy loadings, as the subject areas were not
technically designed to withstand such dynamic activities. Technically, the integrity of the pipes
underneath is compromised in cases of heavy loadings;

WHEREAS, Lot 42-A-6 consisting of an area of 2,026.50 square meters, more or less, is an
extension of the above-mentioned property and for the same reasons, the same should remain
free from disruptions and disturbances;

WHEREAS, Lot 42-A-3 with an area of 15,647.60 square meters, more or less, located in front
of MWSS complex is now developed as part of the C-5 road extension project;

WHEREAS, Lot 42-A-4 with an area of 47,655.70 square meters, more or less, is an extension
of the C-5 road extension project;

WHEREAS, that parcel of land from the aggregate Lot 2 as shown in subdivision Plan PCS-8245
covered by TCT No. 80123 consisting of 8,414.71 square meters, more or less, is located within
the MWSS Balara Complex and serves as a buffer zone of the chlorine house and other water
facilities comprising the Balara Treatment Plant No. 1.

x x x

WHEREFORE, on motion made by Trustee Reyes and duly seconded by Trustee Dumlao, BE IT
RESOLVED, as it is hereby resolved, to UPHOLD the position of Management that it cannot
accede to the segregation of the aforementioned parcels of land of the MWSS
in Barangay Balara, Quezon City for the housing program of families affected by the C-5 Road
Extension Project (NLEX-SLEX Connection). The aqueduct [Right-of-Way] ROW must be
retained/exclusively used for the proposed rehabilitation/upgrading works of the three (3)
aqueducts by MWCI programmed from 2008 and beyond given the fact that the ages or
economic life of the same are nearly reached and/or future improvements considering the
increase of population of Metro Manila.
12


Between 3 December 2007 and 20 June 2008, there were correspondences between
Atty. Rowena Turingan-Sanchez (Atty. Turingan-Sanchez), Director IV of the Office
of the President and Administrator Allado of the MWSS;
13
between MMDA
Chairperson Fernando and Executive Secretary Eduardo Ermita (Exec.
Sec. Ermita);
14
between Leonor C. Cleofas, Deputy Administrator of the MWSS
Operations Department, and Vicente Elefante, Manager of the Property Management
Department of the MWSS;
15
and between the Board of Directors of the MWSS and the
Chairperson of the MMDA on one hand, and Exec. Sec. Ermita on the other.
16
All
these correspondences referred to the segregation of MWSS-owned lots for the
construction of MRBs for those affected by the C-5 Road Extension Project.


On 12 March 2009, MWSS issued Board Resolution No. 2009-052 and allowed
DPWH to use the 60 Meter Right-of-Way for preliminary studies in the
implementation of the C-5 Road Extension Project. The Resolution reads:

Subject to the prior review by Management of the road construction design and the opinion of
the OGCC approving the use of the right-of-way (ROW), as recommended by Management and
the joint Board Committees on Concession, Monitoring and Construction Management,
RESOLVED, as it is hereby resolved, to allow the use by the Department of Public Works and
Highways of the MWSS Balara-La Mesa aqueduct ROW, including the area of the Capitol Golf
Course consisting of 93,941 square meters, for the implementation of
the Katipunan/Tandang Sora Segment Circumferential Road 5 Project.
17



DPWH entered the said properties of the MWSS on 30 June 2009 to conduct the
necessary complete study and detailed design of the C-5 Road Extension Project,
including test pitting and geothermal profiling.

In their memorandum,
18
DPWH, through the Office of the Solicitor General (OSG),
stated that to execute the Magsaysay Avenue Congressional Avenue segment of the
C-5 Road Extension Project, the DPWH will follow the direction of the
existing Katipunan Avenue Tandang Sora Avenue road connection. A portion
of Tandang Sora road, from Magsaysay Avenue to Damayan Road, will be widened to
attain a 30-meter road width, allowing three lanes per direction. The road-widening
aspect of the above-mentioned portion of the project affects Lots 42-A-4 and 42-B-2-
A of the MWSS. A portion of Lot 42-B-2-A was occupied by the Capitol Hills Golf &
Country Club until the early part of July 2009, when the MWSS allowed DPWHs
entry pursuant to Board Resolution No. 2009-052.



The Issues

Torrecampo raises only one issue: Whether respondents should be enjoined from
commencing with and implementing the C-5 Road Extension Project
along Tandang Sora Road, affecting MWSS properties. Torrecampo argues that (1)
he has the legal standing to file the present suit; (2) only the Supreme Court may issue
a restraining order and/or writ of preliminary injunction against government projects,
according to the exception in Section 3 of R.A. 8975; (3) the present suit is not
premature; and (4) the implementation of the C-5 Road Extension Project violates and
defeats the purpose of R.A. 8975 unless it is enjoined.
The MWSS seeks the dismissal of Torrecampos petition on the following grounds:
(1) the petition does not present a justiciable matter that requires the Court to exercise
its power of judicial review; (2) the petition failed to allege Torrecampos right that
warrants the issuance of an injunction under R.A. 8975; and (3) Torrecampo failed to
exhaust administrative remedies.

The DPWH also limits the issue to Torrecampos entitlement to an injunctive writ.
The DPWH argues that: (1) Torrecampo violated the doctrine of hierarchy of courts;
(2) MWSS did not object to DPWHs proposed project on the alleged ground that the
project would destroy the aqueducts; (3) there is no credible proof that the project is
implemented in the RIPADA area; (4) the alignment in the RIPADA area is more
difficult to undertake compared to the DPWH alignment; (5) the petition cannot be a
valid class suit because Torrecampo failed to show proof that he represents the
interest of eight million residents of Metro Manila; (6) the petition is not a valid
taxpayers suit as there is yet no project to speak of; (7) the DPWHs determination of
the location of the project in accordance with its specialized skills and technical
expertise should be accorded with finality and respect; (8) Torrecampo is not entitled
to the issuance of an injunctive writ; and (9) Torrecampo has no cause of action.


The Courts Ruling

The petition must fail. Torrecampo is not entitled to an injunction. Torrecampo seeks
judicial review of a question of Executive policy, a matter outside this Courts
jurisdiction.Torrecampo failed to show that respondents committed grave abuse of
discretion that would warrant the exercise of this Courts extraordinary
certiorari power.

J udicial Review of a Question of Executive Policy

At the outset, we declare that Torrecampo seeks judicial review of a question of
Executive policy, and quotes the Constitution as a thin veil for his weak arguments.

Torrecampo asserts that [t]he right of the eight million residents of Metro Manila to
clean and potable water is greatly put at risk x x x
19
and alleges that the MWSS and
the DPWH violate Section 16, Article II
20
and Section 6, Article XII
21
of the
Constitution should they choose to proceed with the C-5 Road Extension Project using
MWSS properties instead of the RIPADA area. These issues, however, are
dependent upon the wisdom, not legality, of a particular measure.
22
Under the guise
of the relative importance of the rights of a lesser number of motorists to a wider
road vis-a-vis the rights of some eight million residents of Metro Manila to clean and
potable water, Torrecampo wants this Court to determine whether
the Tandang Sora area is a better alternative to the RIPADA area for the C-5
Road Extension Project.

Despite the definition of judicial power under Section 1, Article VIII of the
Constitution,
23
an inquiry on issues raised by Torrecampo would delve into matters
that are exclusively within the wisdom of the Executive branch. The possibility of
judicial interference, as well as the speculative nature of the present petition, was
clearly shown during the oral arguments:

JUSTICE CARPIO:
Ok, so, is it the province of this Court to tell the DPWH that [it] should construct the road not in
the Ripada area but here in the Tandang Sora area. Do we have that jurisdiction?

Atty. Villamor
24
:
No, Your Honor. Maybe what your jurisdiction is to stop or enjoin the DPWH from constructing
the DPWH and the Honorable Court need not direct it, or not direct the DPWH to instead
construct the Ripada area because it is already an ongoing concern Your Honor.

JUSTICE CARPIO:
Is that our duty or thats the duty of the President to tell the DPWH Secretary, dont waste our
money, we have already the road on this Ripada side...

Atty. Villamor:
It can be the duty of the President Your Honor, but the petitioner here Your Honor...

JUSTICE CARPIO:
Did you go to the President and ask the President to tell the DPWH Secretary not to waste the
taxpayers money?



Atty. Villamor:
No, the point Your Honor, the petitioner here is a lowly Barangay Captain...

JUSTICE CARPIO:
Yes, but you can also go to the President if you think that there is a waste of funds by the DPWH
Secretary?

Atty. Villamor:
We did not contemplate of [sic] that possibility Your Honor.

JUSTICE CARPIO:
You should go to the superior first of the Department Secretary, ask the President. We are not the
overseer of the President in terms of Executive functions here.

Atty. Villamor:
Yes, but that is wanting. Maybe the Court is trying to say that we should have exhausted...

JUSTICE CARPIO:
Ok, do you know if the plan of DPWH includes fortifications of the aqueducts [so] that x x x the
integrity will not suffer if there is a road over it?

Atty. Villamor:
We do not know, Your Honor.

JUSTICE CARPIO:
You do not know?

Atty. Villamor:
Yes, Your Honor.

JUSTICE CARPIO:
So, it could be possible that they included that in their plans?

Atty. Villamor:
Well, Your Honors, as I have said Your Honor, apart from the fact that aqueducts will be put in
danger, there is an ongoing Government project, Your Honor.

JUSTICE CARPIO:
So, do you agree with me that it is possible x x x the DPWH did x x x make plans for remedial
measures, so its possible that they in fact made remedial measures?

Atty. Villamor:
Yes, thats possible, Your Honor.

JUSTICE CARPIO:
Ok. You are coming here and you are alleging so many factual issues that hundreds of millions
of pesos have already been disbursed?
Atty. Villamor:
Yes, Your Honor.

JUSTICE CARPIO
What are your supporting papers on this?

Atty. Villamor:
The SARO that I have just shown, Your Honor.

JUSTICE CARPIO:
Yes, the SARO doesnt mean actual expenditure, there has to be a contract and the payments
must have been made. There are so many SAROs floating around and not a single centavo has
been spent.

Atty. Villamor:
Im not saying by virtue of the SARO, Your Honor, moneys have been spent, what Im saying is
that by virtue of that SARO the project is being implemented and being pushed through by the
MMDA, Your Honor.
25



The OGCC, in its presentation of the case for MWSS during the oral arguments,
further explained the nature of DPWHs entry into MWSS premises:

Atty. Agra:

x x x

MWSS Board of Trustees, mindful of its mandate under its Charter, issued Resolution No. 2009-
052 on March 12, 2009. The MWSS Board resolved to allow the use by the Department of
Public Works and Highways of the MWSS Balara, La Mesa aqueducts Right of Way for the
implementation of the Katipunan-Tandang Sora segment circumferential road [extension]
project. However, as pointed out by counsel, the implementation of the Resolution, is subject to
two conditions precedent: (1) prior review by management of MWSS of the road construction
design, and (2) opinion from the Office of the Government Corporate Counsel approving the use
of the Right of Way. To date, the conditions have not been complied with, simply because no
road construction design has been prepared and submitted to the MWSS management for
consideration. The objective, therefore, of the entry into the MWSS property last week is two (2)
fold. First, the purpose of the entry is to fence off, clear, segregate and secure the property in
order that DPWH can conduct the necessary complete study and detailed design of the proposed
road extension project. The study includes test pitting and geo-technical profiling. The results of
the study will show the condition and location of the aqueducts, the condition and classification
of the soil, the requirements to protect the aqueducts, assuming that the detailed design is
approved by the MWSS. Second reason, the entry is simply an act of the ownership of the
MWSS over its property along Tandang Sora. The lease contract with Capitol Golf expired in
2005. And therefore, with or without the road extension project, the property should be fenced
off. In sum, no approval of the road extension project has been made by the MWSS since no
study has been submitted to it.

MWSS recognizes the existence of two plans concerning the extension of the C-5. The other plan
referred to in the petition as the better alternative is being pursued by the Metropolitan Manila
Development Authority. The proposed road shall traverse Pook Ricarte, Pook Polaris
and Dagohoy, which is referred to as the Ripada, within the University of the Philippines. An
integral part of the project per Proclamation 1395, is the proposed construction of medium-rise
buildings within the University of the Philippines. Therefore, Your Honors, under Proclamation
1395, MWSS has no role, there is no aqueduct that would be affected by this proposed project
under Proclamation No. 1395. However, in a proposed proclamation which would effectively
amend Proclamation No. 1395, the proposed relocation site of the bonafide residents of the
University of the Philippines shall be within MWSS property along Tandang Sora. This is the
subject of the petition. The letter of Administrator Diosdado Allado dated June 20, 2008, which
is attached to the petition as Annex B, was written in connection with the proposed
proclamation not in connection with Proclamation No. 1395. The proposed proclamation again
pertains to the proposed relocation of UP residents within the MWSS property, in connection
with the proposed C-5 project being carried out by MMDA. The first paragraph of the letter was
conveniently omitted by petitioner in his discussion. Because the first paragraph of the letter puts
into context the objections of the MWSS. What petitioner projects is that the objections of the
MWSS pertains to the road extension project while in truth and in fact the letter referred, signed
by Mr. Allado, the Administrator of the MWSS, refers to the objections not on the the proposed
road widening project, but on the proposed housing project. The objections of the MWSS of any
disruption or any disturbance on the aqueducts are confined to the proposed construction of
medium-rise buildings that will be constructed on top of the aqueducts. Thus, MWSS is not
objecting to any proposed extension road project on top of the aqueducts. At this point MWSS
cannot object or concur with any road project since no comprehensive study has been made and
has been submitted to the MWSS for its approval.

Further, it would be erroneous to automatically assume that any road above the aqueducts would
necessarily impair or compromise the integrity of the aqueducts. At present, as pointed out by the
Office of the Solicitor General, there are portions of the aqueducts which are under
Commonwealth Avenue, Luzon Avenue and Tandang Sora. The aqueducts to this day are intact
and serve the water needs of the 8 million residents of Metro Manila.
26




The determination of where, as between two possible routes, to construct a road
extension is obviously not within the province of this Court. Such determination
belongs to the Executive branch. Moreover, in this case the DPWH still has to conduct
the proper study to determine whether a road can be safely constructed on land
beneath which runs the aqueducts. Without such study, the MWSS, which owns the
land, cannot decide whether to allow the DPWH to construct the road. Absent such
DPWH study and MWSS decision, no grave abuse of discretion amounting to lack of
jurisdiction can be alleged against or attributed to respondents warranting the exercise
of this Courts extraordinary certiorari power.
27


Indeed, for the above reason alone, Torrecampos petition must fail. There is no need
to further discuss the other issues raised by the parties.

WHEREFORE, we DENY the petition filed by Barangay Captain Beda Torrecampo.
No pronouncement as to costs.


PLANTERS PRODUCTS, INC., G.R. No. 166006
Petitioner,
Present:

YNARES-SANTIAGO, J.,
Chairperson,
AUSTRIA-MARTINEZ,
- versus - CHICO-NAZARIO,
NACHURA, and
REYES, JJ.


Promulgated:
FERTIPHIL CORPORATION,
Respondent. March 14, 2008

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

D E C I S I O N


REYES, R.T., J .:


THE Regional Trial Courts (RTC) have the authority and jurisdiction to
consider the constitutionality of statutes, executive orders, presidential decrees and
other issuances. The Constitution vests that power not only in the Supreme Court
but in all Regional Trial Courts.

The principle is relevant in this petition for review on certiorari of the
Decision
[1]
of the Court of Appeals (CA) affirming with modification that of
the RTC in Makati City,
[2]
finding petitioner Planters Products, Inc. (PPI) liable to
private respondent Fertiphil Corporation (Fertiphil) for the levies it paid under
Letter of Instruction (LOI) No. 1465.

The Facts

Petitioner PPI and private respondent Fertiphil are private corporations
incorporated under Philippine laws.
[3]
They are both engaged in the importation
and distribution of fertilizers, pesticides and agricultural chemicals.

On June 3, 1985, then President Ferdinand Marcos, exercising his legislative
powers, issued LOI No. 1465 which provided, among others, for the imposition of
a capital recovery component (CRC) on the domestic sale of all grades of
fertilizers in the Philippines.
[4]
The LOI provides:

3. The Administrator of the Fertilizer Pesticide Authority to include in
its fertilizer pricing formula a capital contribution component of not
less than P10 per bag. This capital contribution shall be collected
until adequate capital is raised to make PPI viable. Such capital
contribution shall be applied by FPA to all domestic sales of
fertilizers in the Philippines.
[5]
(Underscoring supplied)

Pursuant to the LOI, Fertiphil paid P10 for every bag of fertilizer it sold in
the domestic market to the Fertilizer and Pesticide Authority (FPA). FPA then
remitted the amount collected to the Far East Bank and Trust Company, the
depositary bank of PPI. Fertiphil paid P6,689,144 to FPA from July 8,
1985 to January 24, 1986.
[6]


After the 1986 Edsa Revolution, FPA voluntarily stopped the imposition of
the P10 levy. With the return of democracy, Fertiphil demanded from PPI a refund
of the amounts it paid under LOI No. 1465, but PPI refused to accede to the
demand.
[7]


Fertiphil filed a complaint for collection and damages
[8]
against FPA and PPI
with the RTC in Makati. It questioned the constitutionality of LOI No. 1465 for
being unjust, unreasonable, oppressive, invalid and an unlawful imposition that
amounted to a denial of due process of law.
[9]
Fertiphil alleged that the LOI solely
favored PPI, a privately owned corporation, which used the proceeds to maintain
its monopoly of the fertilizer industry.

In its Answer,
[10]
FPA, through the Solicitor General, countered that the
issuance of LOI No. 1465 was a valid exercise of the police power of the State in
ensuring the stability of the fertilizer industry in the country. It also averred that
Fertiphil did not sustain any damage from the LOI because the burden imposed by
the levy fell on the ultimate consumer, not the seller.

RTC Disposition

On November 20, 1991, the RTC rendered judgment in favor of Fertiphil,
disposing as follows:

WHEREFORE, in view of the foregoing, the Court hereby
renders judgment in favor of the plaintiff and against the defendant
Planters Product, Inc., ordering the latter to pay the former:

1) the sum of P6,698,144.00 with interest at 12% from
the time of judicial demand;
2) the sum of P100,000 as attorneys fees;
3) the cost of suit.

SO ORDERED.
[11]





Ruling that the imposition of the P10 CRC was an exercise of the States
inherent power of taxation, the RTC invalidated the levy for violating the basic
principle that taxes can only be levied for public purpose, viz.:

It is apparent that the imposition of P10 per fertilizer bag sold in
the country by LOI 1465 is purportedly in the exercise of the power of
taxation. It is a settled principle that the power of taxation by the state is
plenary. Comprehensive and supreme, the principal check upon its
abuse resting in the responsibility of the members of the legislature to
their constituents. However, there are two kinds of limitations on the
power of taxation: the inherent limitations and the constitutional
limitations.

One of the inherent limitations is that a tax may be levied only
for public purposes:

The power to tax can be resorted to only for a
constitutionally valid public purpose. By the same token,
taxes may not be levied for purely private purposes, for
building up of private fortunes, or for the redress of private
wrongs. They cannot be levied for the improvement of
private property, or for the benefit, and promotion of
private enterprises, except where the aid is incident to the
public benefit. It is well-settled principle of constitutional
law that no general tax can be levied except for the purpose
of raising money which is to be expended for public
use. Funds cannot be exacted under the guise of taxation to
promote a purpose that is not of public interest. Without
such limitation, the power to tax could be exercised or
employed as an authority to destroy the economy of the
people. A tax, however, is not held void on the ground of
want of public interest unless the want of such interest is
clear. (71 Am. Jur. pp. 371-372)

In the case at bar, the plaintiff paid the amount of P6,698,144.00
to the Fertilizer and Pesticide Authority pursuant to the P10 per bag of
fertilizer sold imposition under LOI 1465 which, in turn, remitted the
amount to the defendant Planters Products, Inc. thru the latters
depository bank, Far East Bank and Trust Co. Thus, by virtue of LOI
1465 the plaintiff, Fertiphil Corporation, which is a private domestic
corporation, became poorer by the amount of P6,698,144.00 and the
defendant, Planters Product, Inc., another private domestic corporation,
became richer by the amount of P6,698,144.00.

Tested by the standards of constitutionality as set forth in the
afore-quoted jurisprudence, it is quite evident that LOI 1465 insofar as it
imposes the amount of P10 per fertilizer bag sold in the country and
orders that the said amount should go to the defendant Planters Product,
Inc. is unlawful because it violates the mandate that a tax can be levied
only for a public purpose and not to benefit, aid and promote a private
enterprise such as Planters Product, Inc.
[12]


PPI moved for reconsideration but its motion was denied.
[13]
PPI then filed a
notice of appeal with the RTC but it failed to pay the requisite appeal docket
fee. In a separate but related proceeding, this Court
[14]
allowed the appeal of PPI
and remanded the case to the CA for proper disposition.

CA Decision

On November 28, 2003, the CA handed down its decision affirming with
modification that of the RTC, with the following fallo:

IN VIEW OF ALL THE FOREGOING, the decision appealed
from is hereby AFFIRMED, subject to the MODIFICATION that the
award of attorneys fees is hereby DELETED.
[15]


In affirming the RTC decision, the CA ruled that the lis mota of the
complaint for collection was the constitutionality of LOI No. 1465, thus:

The question then is whether it was proper for the trial court to
exercise its power to judicially determine the constitutionality of the
subject statute in the instant case.

As a rule, where the controversy can be settled on other grounds,
the courts will not resolve the constitutionality of a law (Lim v.
Pacquing, 240 SCRA 649 [1995]). The policy of the courts is to avoid
ruling on constitutional questions and to presume that the acts of
political departments are valid, absent a clear and unmistakable showing
to the contrary.

However, the courts are not precluded from exercising such
power when the following requisites are obtaining in a controversy
before it: First, there must be before the court an actual case calling for
the exercise of judicial review. Second, the question must be ripe for
adjudication. Third, the person challenging the validity of the act must
have standing to challenge. Fourth, the question of constitutionality
must have been raised at the earliest opportunity; and lastly, the issue of
constitutionality must be the very lis mota of the case (Integrated Bar of
the Philippines v. Zamora, 338 SCRA 81 [2000]).

Indisputably, the present case was primarily instituted for
collection and damages. However, a perusal of the complaint also
reveals
that the instant action is founded on the claim that the levy imposed was
an unlawful and unconstitutional special assessment. Consequently, the
requisite that the constitutionality of the law in question be the very lis
mota of the case is present, making it proper for the trial court to rule on
the constitutionality of LOI 1465.
[16]


The CA held that even on the assumption that LOI No. 1465 was issued
under the police power of the state, it is still unconstitutional because it did not
promote public welfare. The CA explained:

In declaring LOI 1465 unconstitutional, the trial court held that
the levy imposed under the said law was an invalid exercise of the
States power of taxation inasmuch as it violated the inherent and
constitutional prescription that taxes be levied only for public
purposes. It reasoned out that the amount collected under the levy was
remitted to the depository bank of PPI, which the latter used to advance
its private interest.

On the other hand, appellant submits that the subject statutes
passage was a valid exercise of police power. In addition, it disputes the
court a quos findings arguing that the collections under LOI 1465 was
for the benefit of Planters Foundation, Incorporated (PFI), a foundation
created by law to hold in trust for millions of farmers, the stock
ownership of PPI.

Of the three fundamental powers of the State, the exercise of
police power has been characterized as the most essential, insistent and
the least limitable of powers, extending as it does to all the great public
needs. It may be exercised as long as the activity or the property sought
to be regulated has some relevance to public welfare (Constitutional
Law, by Isagani A. Cruz, p. 38, 1995 Edition).

Vast as the power is, however, it must be exercised within the
limits set by the Constitution, which requires the concurrence of a lawful
subject and a lawful method. Thus, our courts have laid down the test to
determine the validity of a police measure as follows: (1) the interests of
the public generally, as distinguished from those of a particular class,
requires its exercise; and (2) the means employed are reasonably
necessary for the accomplishment of the purpose and not unduly
oppressive upon individuals (National Development Company v.
Philippine Veterans Bank, 192 SCRA 257 [1990]).

It is upon applying this established tests that We sustain the trial
courts holding LOI 1465 unconstitutional. To be sure, ensuring the
continued supply and distribution of fertilizer in the country is an
undertaking imbued with public interest. However, the method by which
LOI 1465 sought to achieve this is by no means a measure that will
promote the public welfare. The governments commitment to support
the successful rehabilitation and continued viability of PPI, a private
corporation, is an unmistakable attempt to mask the subject statutes
impartiality. There is no way to treat the self-interest of a favored entity,
like PPI, as identical with the general interest of the countrys farmers or
even the Filipino people in general. Well to stress, substantive due
process exacts fairness and equal protection disallows distinction where
none is needed. When a statutes public purpose is spoiled by private
interest, the use of police power becomes a travesty which must be
struck down for being an arbitrary exercise of government power. To
rule in favor of appellant would contravene the general principle that
revenues derived from taxes cannot be used for purely private purposes
or for the exclusive benefit of private individuals.
[17]


The CA did not accept PPIs claim that the levy imposed under LOI No.
1465 was for the benefit of Planters Foundation, Inc., a foundation created to hold
in trust the stock ownership of PPI. The CA stated:

Appellant next claims that the collections under LOI 1465 was
for the benefit of Planters Foundation, Incorporated (PFI), a foundation
created by law to hold in trust for millions of farmers, the stock
ownership of PFI on the strength of Letter of Undertaking (LOU) issued
by then Prime Minister Cesar Virata on April 18, 1985 and affirmed by
the Secretary of Justice in an Opinion dated October 12, 1987, to wit:

2. Upon the effective date of this Letter of
Undertaking, the Republic shall cause FPA to include in its
fertilizer pricing formula a capital recovery component, the
proceeds of which will be used initially for the purpose of
funding the unpaid portion of the outstanding capital stock
of Planters presently held in trust by Planters Foundation,
Inc. (Planters Foundation), which unpaid capital is
estimated at approximately P206 million (subject to
validation by Planters and Planters Foundation) (such
unpaid portion of the outstanding capital stock of Planters
being hereafter referred to as the Unpaid Capital), and
subsequently for such capital increases as may be required
for the continuing viability of Planters.

The capital recovery component shall be in the
minimum amount of P10 per bag, which will be added to
the price of all domestic sales of fertilizer in
the Philippines by any importer and/or fertilizer mother
company. In this connection, the Republic hereby
acknowledges that the advances by Planters to Planters
Foundation which were applied to the payment of the
Planters shares now held in trust by Planters Foundation,
have been assigned to, among others, the
Creditors. Accordingly, the Republic, through FPA, hereby
agrees to deposit the proceeds of the capital recovery
component in the special trust account designated in the
notice dated April 2, 1985, addressed by counsel for the
Creditors to Planters Foundation. Such proceeds shall be
deposited by FPA on or before the 15
th
day of each month.



The capital recovery component shall continue to be
charged and collected until payment in full of (a) the
Unpaid Capital and/or (b) any shortfall in the payment of
the Subsidy Receivables, (c) any carrying cost accruing
from the date hereof on the amounts which may be
outstanding from time to time of the Unpaid Capital and/or
the Subsidy Receivables and (d) the capital increases
contemplated in paragraph 2 hereof. For the purpose of the
foregoing clause (c), the carrying cost shall be at such rate
as will represent the full and reasonable cost to Planters of
servicing its debts, taking into account both its peso and
foreign currency-denominated obligations. (Records, pp.
42-43)

Appellants proposition is open to question, to say the least. The
LOU issued by then Prime Minister Virata taken together with the
Justice Secretarys Opinion does not preponderantly demonstrate that the
collections made were held in trust in favor of millions of
farmers. Unfortunately for appellant, in the absence of sufficient
evidence to establish its claims, this Court is constrained to rely on what
is explicitly provided in LOI 1465 that one of the primary aims in
imposing the levy is to support the successful rehabilitation and
continued viability of PPI.
[18]


PPI moved for reconsideration but its motion was denied.
[19]
It then filed the
present petition with this Court.

Issues

Petitioner PPI raises four issues for Our consideration, viz.:

I
THE CONSTITUTIONALITY OF LOI 1465 CANNOT BE
COLLATERALLY ATTACKED AND BE DECREED VIA A
DEFAULT JUDGMENT IN A CASE FILED FOR
COLLECTIONAND DAMAGES WHERE THE ISSUE OF
CONSTITUTIONALITY IS NOT THE VERY LIS MOTA OF THE
CASE. NEITHER CAN LOI 1465 BE CHALLENGED BY ANY
PERSON OR ENTITY WHICH HAS NO STANDING TO DO SO.

II
LOI 1465, BEING A LAW IMPLEMENTED FOR THE PURPOSE OF
ASSURING THE FERTILIZER SUPPLY AND DISTRIBUTION IN
THE COUNTRY, AND FOR BENEFITING A FOUNDATION
CREATED BY LAW TO HOLD IN TRUST FOR MILLIONS OF
FARMERS THEIR STOCK OWNERSHIP IN PPI CONSTITUTES A
VALID LEGISLATION PURSUANT TO THE EXERCISE OF
TAXATION AND POLICE POWER FOR PUBLIC PURPOSES.

III
THE AMOUNT COLLECTED UNDER THE CAPITAL RECOVERY
COMPONENT WAS REMITTED TO THE
GOVERNMENT, AND BECAME GOVERNMENT FUNDS
PURSUANT TO AN EFFECTIVE AND VALIDLY ENACTED LAW
WHICH IMPOSED DUTIES AND CONFERRED RIGHTS BY
VIRTUE OF THE PRINCIPLE OF OPERATIVEFACT PRIOR TO
ANY DECLARATION OF UNCONSTITUTIONALITY OF LOI 1465.

IV
THE PRINCIPLE OF UNJUST VEXATION (SHOULD BE
ENRICHMENT) FINDS NO APPLICATION IN THE INSTANT
CASE.
[20]
(Underscoring supplied)

Our Ruling

We shall first tackle the procedural issues of locus standi and the jurisdiction
of the RTC to resolve constitutional issues.

Fertiphil has locus standi because it
suffered direct injury; doctrine of standing
is a mere procedural technicality which
may be waived.

PPI argues that Fertiphil has no locus standi to question the constitutionality
of LOI No. 1465 because it does not have a personal and substantial interest in the
case or will sustain direct injury as a result of its enforcement.
[21]
It asserts that
Fertiphil did not suffer any damage from the CRC imposition because incidence
of the levy fell on the ultimate consumer or the farmers themselves, not on the
seller fertilizer company.
[22]


We cannot agree. The doctrine of locus standi or the right of appearance in
a court of justice has been adequately discussed by this Court in a catena of
cases. Succinctly put, the doctrine requires a litigant to have a material interest in
the outcome of a case. In private suits, locus standi requires a litigant to be a real
party in interest, which is defined as the
party who stands to be benefited or injured by the judgment in the suit or the party
entitled to the avails of the suit.
[23]


In public suits, this Court recognizes the difficulty of applying the doctrine
especially when plaintiff asserts a public right on behalf of the general public
because of conflicting public policy issues.
[24]
On one end, there is the right of the
ordinary citizen to petition the courts to be freed from unlawful government
intrusion and illegal official action. At the other end, there is the public policy
precluding excessive judicial interference in official acts, which may unnecessarily
hinder the delivery of basic public services.

In this jurisdiction, We have adopted the direct injury test to
determine locus standi in public suits. In People v. Vera,
[25]
it was held that
a person who impugns the validity of a statute must have a personal and
substantial interest in the case such that he has sustained, or will sustain direct
injury as a result. The direct injury test in public suits is similar to the real
party in interest rule for private suits under Section 2, Rule 3 of the 1997 Rules of
Civil Procedure.
[26]


Recognizing that a strict application of the direct injury test may hamper
public interest, this Court relaxed the requirement in cases of transcendental
importance or with far reaching implications. Being a mere procedural
technicality, it has also been held that locus standi may be waived in the public
interest.
[27]





Whether or not the complaint for collection is characterized as a private or
public suit, Fertiphil has locus standi to file it. Fertiphil suffered a direct injury
from the enforcement of LOI No. 1465. It was required, and it did pay, the P10
levy imposed for every bag of fertilizer sold on the domestic market. It may be
true that Fertiphil has passed some or all of the levy to the ultimate consumer, but
that does not disqualify it from attacking the constitutionality of the LOI or from
seeking a refund. As seller, it bore the ultimate burden of paying the levy. It faced
the possibility of severe sanctions for failure to pay the levy. The fact of payment
is sufficient injury to Fertiphil.

Moreover, Fertiphil suffered harm from the enforcement of the LOI because
it was compelled to factor in its product the levy. The levy certainly rendered the
fertilizer products of Fertiphil and other domestic sellers much more
expensive. The harm to their business consists not only in fewer clients because of
the increased price, but also in adopting alternative corporate strategies to meet the
demands of LOI No. 1465. Fertiphil and other fertilizer sellers may have
shouldered all or part of the levy just to be competitive in the market. The harm
occasioned on the business of Fertiphil is sufficient injury for purposes of locus
standi.

Even assuming arguendo that there is no direct injury, We find that the
liberal policy consistently adopted by this Court on locus standi must apply. The
issues raised by Fertiphil are of paramount public importance. It involves not only
the constitutionality of a tax law but, more importantly, the use of taxes for public
purpose. Former President Marcos issued LOI No. 1465 with the intention of
rehabilitating an ailing private company. This is clear from the text of the
LOI. PPI is expressly named in the LOI as the direct beneficiary of the
levy. Worse, the levy was made dependent and conditional upon PPI becoming
financially viable. The LOI provided that the capital contribution shall be
collected until adequate capital is raised to make PPI viable.

The constitutionality of the levy is already in doubt on a plain reading of the
statute. It is Our constitutional duty to squarely resolve the issue as the final
arbiter of all justiciable controversies. The doctrine of standing, being a mere
procedural technicality, should be waived, if at all, to adequately thresh out an
important constitutional issue.

RTC may resolve constitutional issues; the
constitutional issue was adequately raised
in the complaint; it is the lis mota of the
case.

PPI insists that the RTC and the CA erred in ruling on the constitutionality
of the LOI. It asserts that the constitutionality of the LOI cannot be collaterally
attacked in a complaint for collection.
[28]
Alternatively, the resolution of the
constitutional issue is not necessary for a determination of the complaint for
collection.
[29]


Fertiphil counters that the constitutionality of the LOI was adequately
pleaded in its complaint. It claims that the constitutionality of LOI No. 1465 is the
very lis mota of the case because the trial court cannot determine its claim without
resolving the issue.
[30]


It is settled that the RTC has jurisdiction to resolve the constitutionality of a
statute, presidential decree or an executive order. This is clear from Section 5,
Article VIII of the 1987 Constitution, which provides:




SECTION 5. The Supreme Court shall have the following
powers:

x x x x

(2) Review, revise, reverse, modify, or affirm on appeal
or certiorari, as the law or the Rules of Court may provide, final
judgments and orders of lower courts in:

(a) All cases in which the constitutionality or
validity of any treaty, international or executive agreement,
law, presidential decree, proclamation, order, instruction,
ordinance, or regulation is in question. (Underscoring
supplied)

In Mirasol v. Court of Appeals,
[31]
this Court recognized the power of
the RTC to resolve constitutional issues, thus:

On the first issue. It is settled that Regional Trial Courts have the
authority and jurisdiction to consider the constitutionality of a statute,
presidential decree, or executive order. The Constitution vests the power
of judicial review or the power to declare a law, treaty, international or
executive agreement, presidential decree, order, instruction, ordinance,
or regulation not only in this Court, but in all Regional Trial Courts.
[32]


In the recent case of Equi-Asia Placement, Inc. v. Department of Foreign
Affairs,
[33]
this Court reiterated:

There is no denying that regular courts have jurisdiction over
cases involving the validity or constitutionality of a rule or regulation
issued by administrative agencies. Such jurisdiction, however, is not
limited to the Court of Appeals or to this Court alone for even the
regional trial courts can take cognizance of actions assailing a specific
rule or set of rules promulgated by administrative bodies. Indeed, the
Constitution vests the power of judicial review or the power to declare a
law, treaty, international or executive agreement, presidential decree,
order, instruction, ordinance, or regulation in the courts, including the
regional trial courts.
[34]


Judicial review of official acts on the ground of unconstitutionality may be
sought or availed of through any of the actions cognizable by courts of justice, not
necessarily in a suit for declaratory relief. Such review may be had in criminal
actions, as in People v. Ferrer
[35]
involving the constitutionality of the now defunct
Anti-Subversion law, or in ordinary actions, as in Krivenko v. Register of
Deeds
[36]
involving the constitutionality of laws prohibiting aliens from acquiring
public lands. The constitutional issue, however, (a) must be properly raised
and presented in the case, and (b) its resolution is necessary to a determination of
the case, i.e., the issue of constitutionality must be the very lis motapresented.
[37]


Contrary to PPIs claim, the constitutionality of LOI No. 1465 was properly
and adequately raised in the complaint for collection filed with the RTC. The
pertinent portions of the complaint allege:

6. The CRC of P10 per bag levied under LOI 1465 on domestic
sales of all grades of fertilizer in the Philippines, is unlawful, unjust,
uncalled for, unreasonable, inequitable and oppressive because:

x x x x

(c) It favors only one private domestic corporation,
i.e., defendant PPPI, and imposed at the expense and
disadvantage of the other fertilizer importers/distributors
who were themselves in tight business situation and were
then exerting all efforts and maximizing management and
marketing skills to remain viable;

x x x x

(e) It was a glaring example of crony capitalism, a
forced program through which the PPI, having been
presumptuously masqueraded as the fertilizer industry
itself, was the sole and anointed beneficiary;

7. The CRC was an unlawful; and unconstitutional special
assessment and its imposition is tantamount to illegal exaction
amounting to a denial of due process since the persons of entities which
had to bear the burden of paying the CRC derived no benefit therefrom;
that on the contrary it was used by PPI in trying to regain its former
despicable monopoly of the fertilizer industry to the detriment of other
distributors and importers.
[38]
(Underscoring supplied)

The constitutionality of LOI No. 1465 is also the very lis mota of the
complaint for collection. Fertiphil filed the complaint to compel PPI to refund the
levies paid under the statute on the ground that the law imposing the levy is
unconstitutional. The thesis is that an unconstitutional law is void. It has no legal
effect. Being void, Fertiphil had no legal obligation to pay the levy. Necessarily,
all levies duly paid pursuant to an unconstitutional law should be refunded under
the civil code principle against unjust enrichment. The refund is a mere
consequence of the law being declared unconstitutional. The RTC surely cannot
order PPI to refund Fertiphil if it does not declare the LOI unconstitutional. It is the
unconstitutionality of the LOI which triggers the refund. The issue of
constitutionality is the very lis mota of the complaint with the RTC.

The P10 levy under LOI No. 1465 is an
exercise of the power of taxation.

At any rate, the Court holds that the RTC and the CA did not err in ruling
against the constitutionality of the LOI.

PPI insists that LOI No. 1465 is a valid exercise either of the police power or
the power of taxation. It claims that the LOI was implemented for the purpose of
assuring the fertilizer supply and distribution in the country and for benefiting a
foundation created by law to hold in trust for millions of farmers their stock
ownership in PPI.

Fertiphil counters that the LOI is unconstitutional because it was enacted to
give benefit to a private company. The levy was imposed to pay the corporate debt
of PPI. Fertiphil also argues that, even if the LOI is enacted under the police
power, it is still unconstitutional because it did not promote the general welfare of
the people or public interest.

Police power and the power of taxation are inherent powers of the
State. These powers are distinct and have different tests for validity. Police power
is the power of the State to enact legislation that may interfere with personal liberty
or property in order to promote the general welfare,
[39]
while the power of taxation
is the power to levy taxes to be used for public purpose. The main purpose of
police power is the regulation of a behavior or conduct, while taxation is revenue
generation. The lawful subjects and lawful means tests are used to determine
the validity of a law enacted under the police power.
[40]
The power of taxation, on
the other hand, is circumscribed by inherent and constitutional limitations.

We agree with the RTC that the imposition of the levy was an exercise by
the State of its taxation power. While it is true that the power of taxation can be
used as an implement of police power,
[41]
the primary purpose of the levy is
revenue generation. If the purpose is primarily revenue, or if revenue is, at least,
one of the real and substantial purposes, then the exaction is properly called a
tax.
[42]


In Philippine Airlines, Inc. v. Edu,
[43]
it was held that the imposition of a
vehicle registration fee is not an exercise by the State of its police power, but of its
taxation power, thus:

It is clear from the provisions of Section 73 of Commonwealth
Act 123 and Section 61 of the Land Transportation and Traffic Code that
the legislative intent and purpose behind the law requiring owners of
vehicles to pay for their registration is mainly to raise funds for the
construction and maintenance of highways and to a much lesser degree,
pay for the operating expenses of the administering agency. x x x Fees
may be properly regarded as taxes even though they also serve as an
instrument of regulation.

Taxation may be made the implement of the state's police power
(Lutz v. Araneta, 98 Phil. 148). If the purpose is primarily revenue, or if
revenue is, at least, one of the real and substantial purposes, then the
exaction is properly called a tax. Such is the case of motor vehicle
registration fees. The same provision appears as Section 59(b) in the
Land Transportation Code. It is patent therefrom that the legislators had
in mind a regulatory tax as the law refers to the imposition on the
registration, operation or ownership of a motor vehicle as a tax or
fee. x x x Simply put, if the exaction under Rep. Act 4136 were merely
a regulatory fee, the imposition in Rep. Act 5448 need not be an
additional tax. Rep. Act 4136 also speaks of other fees such as the
special permit fees for certain types of motor vehicles (Sec. 10) and
additional fees for change of registration (Sec. 11). These are not to be
understood as taxes because such fees are very minimal to be revenue-
raising. Thus, they are not mentioned by Sec. 59(b) of the Code as taxes
like the motor vehicle registration fee and chauffeurs license fee. Such
fees are to go into the expenditures of the Land Transportation
Commission as provided for in the last proviso of Sec.
61.
[44]
(Underscoring supplied)

The P10 levy under LOI No. 1465 is too excessive to serve a mere
regulatory purpose. The levy, no doubt, was a big burden on the seller or the
ultimate consumer. It increased the price of a bag of fertilizer by as much as five
percent.
[45]
A plain reading of the LOI also supports the conclusion that the levy
was for revenue generation. The LOI expressly provided that the levy was
imposed until adequate capital is raised to make PPI viable.

Taxes are exacted only for a public
purpose. The P10 levy is unconstitutional
because it was not for a public purpose.
The levy was imposed to give undue benefit
to PPI .

An inherent limitation on the power of taxation is public purpose. Taxes are
exacted only for a public purpose. They cannot be used for purely private purposes
or for the exclusive benefit of private persons.
[46]
The reason for this is
simple. The power to tax exists for the general welfare; hence, implicit in its
power is the limitation that it should be used only for a public purpose. It would be
a robbery for the State to tax its citizens and use the funds generated for a private
purpose. As an old United States case bluntly put it: To lay with one hand, the
power of the government on the property of the citizen, and with the other to
bestow it upon favored individuals to aid private enterprises and build up private
fortunes, is nonetheless a robbery because it is done under the forms of law and is
called taxation.
[47]


The term public purpose is not defined. It is an elastic concept that can be
hammered to fit modern standards. Jurisprudence states that public purpose
should be given a broad interpretation. It does not only pertain to those purposes
which are traditionally viewed as essentially government functions, such as
building roads and delivery of basic services, but also includes those purposes
designed to promote social justice. Thus, public money may now be used for the
relocation of illegal settlers, low-cost housing and urban or agrarian reform.

While the categories of what may constitute a public purpose are continually
expanding in light of the expansion of government functions, the inherent
requirement that taxes can only be exacted for a public purpose still stands. Public
purpose is the heart of a tax law. When a tax law is only a mask to exact funds
from the public when its true intent is to give undue benefit and advantage to a
private enterprise, that law will not satisfy the requirement of public purpose.

The purpose of a law is evident from its text or inferable from other
secondary sources. Here, We agree with the RTC and that CA that the levy
imposed under LOI No. 1465 was not for a public purpose.

First, the LOI expressly provided that the levy be imposed to benefit PPI, a
private company. The purpose is explicit from Clause 3 of the law, thus:

3. The Administrator of the Fertilizer Pesticide Authority to include in
its fertilizer pricing formula a capital contribution component of not
less than P10 per bag. This capital contribution shall be collected
until adequate capital is raised to make PPI viable. Such capital
contribution shall be applied by FPA to all domestic sales of
fertilizers in the Philippines.
[48]
(Underscoring supplied)



It is a basic rule of statutory construction that the text of a statute should be
given a literal meaning. In this case, the text of the LOI is plain that the levy was
imposed in order to raise capital for PPI. The framers of the LOI did not even hide
the insidious purpose of the law. They were cavalier enough to name PPI as the
ultimate beneficiary of the taxes levied under the LOI. We find it utterly repulsive
that a tax law would expressly name a private company as the ultimate beneficiary
of the taxes to be levied from the public. This is a clear case of crony capitalism.

Second, the LOI provides that the imposition of the P10 levy was conditional
and dependent upon PPI becoming financially viable. This suggests that the levy
was actually imposed to benefit PPI. The LOI notably does not fix a maximum
amount when PPI is deemed financially viable. Worse, the liability of Fertiphil
and other domestic sellers of fertilizer to pay the levy is made indefinite. They are
required to continuously pay the levy until adequate capital is raised for PPI.

Third, the RTC and the CA held that the levies paid under the LOI were
directly remitted and deposited by FPA to Far East Bank and Trust Company, the
depositary bank of PPI.
[49]
This proves that PPI benefited from the LOI. It is also
proves that the main purpose of the law was to give undue benefit and advantage to
PPI.

Fourth, the levy was used to pay the corporate debts of PPI. A reading of
the Letter of Understanding
[50]
dated May 18, 1985 signed by then Prime Minister
Cesar Virata reveals that PPI was in deep financial problem because of its huge
corporate debts. There were pending petitions for rehabilitation against PPI before
the Securities and Exchange Commission. The government guaranteed payment of
PPIs debts to its foreign creditors. To fund the payment, President Marcos issued
LOI No. 1465. The pertinent portions of the letter of understanding read:

Republic of the Philippines
Office of the Prime Minister
Manila

LETTER OF UNDERTAKING

May 18, 1985

TO: THE BANKING AND FINANCIAL INSTITUTIONS
LISTED IN ANNEX A HERETO WHICH ARE
CREDITORS (COLLECTIVELY, THE CREDITORS)
OF PLANTERS PRODUCTS, INC. (PLANTERS)

Gentlemen:

This has reference to Planters which is the principal importer and
distributor of fertilizer, pesticides and agricultural chemicals in the
Philippines. As regards Planters, the Philippine Government confirms
its awareness of the following: (1) that Planters has outstanding
obligations in foreign currency and/or pesos, to the Creditors, (2)
that Planters is currently experiencing financial difficulties, and (3)
that there are presently pending with the Securities and Exchange
Commission of the Philippines a petition filed at Planters own behest
for the suspension of payment of all its obligations, and a separate
petition filed by Manufacturers Hanover Trust Company, Manila
Offshore Branch for the appointment of a rehabilitation receiver for
Planters.

In connection with the foregoing, the Republic of the Philippines
(the Republic) confirms that it considers and continues to consider
Planters as a major fertilizer distributor. Accordingly, for and in
consideration of your expressed willingness to consider and participate
in the effort to rehabilitate Planters, the Republic hereby manifests its
full and unqualified support of the successful rehabilitation and
continuing viability of Planters, and to that end, hereby binds and
obligates itself to the creditors and Planters, as follows:

x x x x

2. Upon the effective date of this Letter of Undertaking, the
Republic shall cause FPA to include in its fertilizer pricing formula a
capital recovery component, the proceeds of which will be used initially
for the purpose of funding the unpaid portion of the outstanding capital
stock of Planters presently held in trust by Planters Foundation, Inc.
(Planters Foundation), which unpaid capital is estimated at
approximately P206 million (subject to validation by Planters and
Planters Foundation) such unpaid portion of the outstanding capital stock
of Planters being hereafter referred to as the Unpaid Capital), and
subsequently for such capital increases as may be required for the
continuing viability of Planters.

x x x x

The capital recovery component shall continue to be charged and
collected until payment in full of (a) the Unpaid Capital and/or (b) any
shortfall in the payment of the Subsidy Receivables, (c) any carrying
cost accruing from the date hereof on the amounts which may be
outstanding from time to time of the Unpaid Capital and/or the Subsidy
Receivables, and (d) the capital increases contemplated in paragraph 2
hereof. For the purpose of the foregoing clause (c), the carrying cost
shall be at such rate as will represent the full and reasonable cost to
Planters of servicing its debts, taking into account both its peso and
foreign currency-denominated obligations.

REPUBLIC OF THE PHILIPPINES
By:
(signed)
CESAR E. A. VIRATA
Prime Minister and Minister of Finance
[51]


It is clear from the Letter of Understanding that the levy was imposed
precisely to pay the corporate debts of PPI. We cannot agree with PPI that the levy
was imposed to ensure the stability of the fertilizer industry in the country. The
letter of understanding and the plain text of the LOI clearly indicate that the levy
was exacted for the benefit of a private corporation.

All told, the RTC and the CA did not err in holding that the levy imposed
under LOI No. 1465 was not for a public purpose. LOI No. 1465 failed to comply
with the public purpose requirement for tax laws.

The LOI is still unconstitutional even if
enacted under the police power; it did not
promote public interest.

Even if We consider LOI No. 1695 enacted under the police power of the
State, it would still be invalid for failing to comply with the test of lawful
subjects and lawful means. Jurisprudence states the test as follows: (1) the
interest of the public generally, as distinguished from those of particular class,
requires its exercise; and (2) the means employed are reasonably necessary for the
accomplishment of the purpose and not unduly oppressive upon individuals.
[52]

For the same reasons as discussed, LOI No. 1695 is invalid because it did
not promote public interest. The law was enacted to give undue advantage to a
private corporation. We quote with approval the CA ratiocination on this point,
thus:

It is upon applying this established tests that We sustain the trial
courts holding LOI 1465 unconstitutional. To be sure, ensuring the
continued supply and distribution of fertilizer in the country is an
undertaking imbued with public interest. However, the method by which
LOI 1465 sought to achieve this is by no means a measure that will
promote the public welfare. The governments commitment to support
the successful rehabilitation and continued viability of PPI, a private
corporation, is an unmistakable attempt to mask the subject statutes
impartiality. There is no way to treat the self-interest of a favored entity,
like PPI, as identical with the general interest of the countrys farmers or
even the Filipino people in general. Well to stress, substantive due
process exacts fairness and equal protection disallows distinction where
none is needed. When a statutes public purpose is spoiled by private
interest, the use of police power becomes a travesty which must be
struck down for being an arbitrary exercise of government power. To
rule in favor of appellant would contravene the general principle that
revenues derived from taxes cannot be used for purely private purposes
or for the exclusive benefit of private individuals. (Underscoring
supplied)

The general rule is that an
unconstitutional law is void; the doctrine of
operative fact is inapplicable.

PPI also argues that Fertiphil cannot seek a refund even if LOI No. 1465 is
declared unconstitutional. It banks on the doctrine of operative fact, which
provides that an unconstitutional law has an effect before being declared
unconstitutional. PPI wants to retain the levies paid under LOI No. 1465 even if it
is subsequently declared to be unconstitutional.

We cannot agree. It is settled that no question, issue or argument will be
entertained on appeal, unless it has been raised in the court a quo.
[53]
PPI did not
raise the applicability of the doctrine of operative fact with the RTC and the CA. It
cannot belatedly raise the issue with Us in order to extricate itself from the dire
effects of an unconstitutional law.

At any rate, We find the doctrine inapplicable. The general rule is that an
unconstitutional law is void. It produces no rights, imposes no duties and affords
no protection. It has no legal effect. It is, in legal contemplation, inoperative as if
it has not been passed.
[54]
Being void, Fertiphil is not required to pay the levy. All
levies paid should be refunded in accordance with the general civil code principle
against unjust enrichment. The general rule is supported by Article 7 of the Civil
Code, which provides:

ART. 7. Laws are repealed only by subsequent ones, and their
violation or non-observance shall not be excused by disuse or custom or
practice to the contrary.

When the courts declare a law to be inconsistent with the
Constitution, the former shall be void and the latter shall govern.

The doctrine of operative fact, as an exception to the general rule, only
applies as a matter of equity and fair play.
[55]
It nullifies the effects of an
unconstitutional law by recognizing that the existence of a statute prior to a
determination of unconstitutionality is an operative fact and may have
consequences which cannot always be ignored. The past cannot always be erased
by a new judicial declaration.
[56]


The doctrine is applicable when a declaration of unconstitutionality will
impose an undue burden on those who have relied on the invalid law. Thus, it was
applied to a criminal case when a declaration of unconstitutionality would put the
accused in double jeopardy
[57]
or would put in limbo the acts done by a
municipality in reliance upon a law creating it.
[58]


Here, We do not find anything iniquitous in ordering PPI to refund the
amounts paid by Fertiphil under LOI No. 1465. It unduly benefited from the
levy. It was proven during the trial that the levies paid were remitted and
deposited to its bank account. Quite the reverse, it would be inequitable and unjust
not to order a refund. To do so would unjustly enrich PPI at the expense of
Fertiphil. Article 22 of the Civil Code explicitly provides that every person who,
through an act of performance by another comes into possession of something at
the expense of the latter without just or legal ground shall return the same to
him. We cannot allow PPI to profit from an unconstitutional law. Justice and
equity dictate that PPI must refund the amounts paid by Fertiphil.

WHEREFORE, the petition is DENIED. The Court of Appeals Decision
dated November 28, 2003 is AFFIRMED.

SO ORDERED.


MA. CAROLINA P. ARAULLO ET AL. v. BENIGNO SIMEON C. AQUINO
III ET AL., G.R. NO. 209287, July 1, 2014


Political Law Constitutional Law Separation of Powers Fund Realignment Constitutionality of
the Disbursement Acceleration Program
Power of the Purse Executive Impoundment
When President Benigno Aquino III took office, his administration noticed the sluggish growth of the
economy. The World Bank advised that the economy needed a stimulus plan. Budget Secretary
Florencio Butch Abad then came up with a program called the Disbursement Acceleration Program
(DAP).
The DAP was seen as a remedy to speed up the funding of government projects. DAP enables the
Executive to realign funds from slow moving projects to priority projects instead of waiting for next
years appropriation. So what happens under the DAP was that if a certain government project is
being undertaken slowly by a certain executive agency, the funds allotted therefor will be withdrawn
by the Executive. Once withdrawn, these funds are declared as savings by the Executive and said
funds will then be reallotted to other priority projects. The DAP program did work to stimulate the
economy as economic growth was in fact reported and portion of such growth was attributed to the
DAP (as noted by the Supreme Court).
Other sources of the DAP include the unprogrammed funds from the General Appropriations Act
(GAA). Unprogrammed funds are standby appropriations made by Congress in the GAA.
Meanwhile, in September 2013, Senator Jinggoy Estrada made an expos claiming that he, and
other Senators, received Php50M from the President as an incentive for voting in favor of the
impeachment of then Chief Justice Renato Corona. Secretary Abad claimed that the money was
taken from the DAP but was disbursed upon the request of the Senators.
This apparently opened a can of worms as it turns out that the DAP does not only realign funds
within the Executive. It turns out that some non-Executive projects were also funded; to name a few:
Php1.5B for the CPLA (Cordillera Peoples Liberation Army), Php1.8B for the MNLF (Moro National
Liberation Front), P700M for the Quezon Province, P50-P100M for certain Senators each, P10B for
Relocation Projects, etc.
This prompted Maria Carolina Araullo, Chairperson of the Bagong Alyansang Makabayan, and
several other concerned citizens to file various petitions with the Supreme Court questioning the
validity of the DAP. Among their contentions was:
DAP is unconstitutional because it violates the constitutional rule which provides that no money
shall be paid out of the Treasury except in pursuance of an appropriation made by law.
Secretary Abad argued that the DAP is based on certain laws particularly the GAA (savings and
augmentation provisions thereof), Sec. 25(5), Art. VI of the Constitution (power of the President to
augment), Secs. 38 and 49 of Executive Order 292 (power of the President to suspend expenditures
and authority to use savings, respectively).
Issues:
I. Whether or not the DAP violates the principle no money shall be paid out of the Treasury except
in pursuance of an appropriation made by law (Sec. 29(1), Art. VI, Constitution).
II. Whether or not the DAP realignments can be considered as impoundments by the executive.
III. Whether or not the DAP realignments/transfers are constitutional.
IV. Whether or not the sourcing of unprogrammed funds to the DAP is constitutional.
V. Whether or not the Doctrine of Operative Fact is applicable.
HELD:
I. No, the DAP did not violate Section 29(1), Art. VI of the Constitution. DAP was merely a program
by the Executive and is not a fund nor is it an appropriation. It is a program for prioritizing
government spending. As such, it did not violate the Constitutional provision cited in Section 29(1),
Art. VI of the Constitution. In DAP no additional funds were withdrawn from the Treasury otherwise,
an appropriation made by law would have been required. Funds, which were already appropriated
for by the GAA, were merely being realigned via the DAP.
II. No, there is no executive impoundment in the DAP. Impoundment of funds refers to the
Presidents power to refuse to spend appropriations or to retain or deduct appropriations for
whatever reason. Impoundment is actually prohibited by the GAA unless there will be an
unmanageable national government budget deficit (which did not happen). Nevertheless, theres no
impoundment in the case at bar because whats involved in the DAP was the transfer of funds.
III. No, the transfers made through the DAP were unconstitutional. It is true that the President (and
even the heads of the other branches of the government) are allowed by the Constitution to make
realignment of funds, however, such transfer or realignment should only be made within their
respective offices. Thus, no cross-border transfers/augmentations may be allowed. But under the
DAP, this was violated because funds appropriated by the GAA for the Executive were being
transferred to the Legislative and other non-Executive agencies.
Further, transfers within their respective offices also contemplate realignment of funds to an
existing project in the GAA. Under the DAP, even though some projects were within the Executive,
these projects are non-existent insofar as the GAA is concerned because no funds were
appropriated to them in the GAA. Although some of these projects may be legitimate, they are still
non-existent under the GAA because they were not provided for by the GAA. As such, transfer to
such projects is unconstitutional and is without legal basis.
On the issue of what are savings
These DAP transfers are not savings contrary to what was being declared by the Executive. Under
the definition of savings in the GAA, savings only occur, among other instances, when there is an
excess in the funding of a certain project once it is completed, finally discontinued, or finally
abandoned. The GAA does not refer to savings as funds withdrawn from a slow moving project.
Thus, since the statutory definition of savings was not complied with under the DAP, there is no
basis at all for the transfers. Further, savings should only be declared at the end of the fiscal year.
But under the DAP, funds are already being withdrawn from certain projects in the middle of the year
and then being declared as savings by the Executive particularly by the DBM.
IV. No. Unprogrammed funds from the GAA cannot be used as money source for the DAP because
under the law, such funds may only be used if there is a certification from the National Treasurer to
the effect that the revenue collections have exceeded the revenue targets. In this case, no such
certification was secured before unprogrammed funds were used.
V. Yes. The Doctrine of Operative Fact, which recognizes the legal effects of an act prior to it being
declared as unconstitutional by the Supreme Court, is applicable. The DAP has definitely helped
stimulate the economy. It has funded numerous projects. If the Executive is ordered to reverse all
actions under the DAP, then it may cause more harm than good. The DAP effects can no longer be
undone. The beneficiaries of the DAP cannot be asked to return what they received especially so
that they relied on the validity of the DAP. However, the Doctrine of Operative Fact may not be
applicable to the authors, implementers, and proponents of the DAP if it is so found in the
appropriate tribunals (civil, criminal, or administrative) that they have not acted in good faith.