G.R. No.
224302 27, 2016 and a Motion for Reconsideration-in-Intervention (Of the Decision
HON. PHILIP A. AGUINALDO, HON. REYNALDO A. ALHAMBRA, HON.
DANILO S. CRUZ, HON. BENJAMIN T. POZON, HON. SALVADOR V.
TIMBANG, JR., and the INTEGRATED BAR OF THE PHILIPPINES (IBP),
Petitioners
vs.
HIS EXCELLENCY PRESIDENT BENIGNO SIMEON C. AQUINO III, HON.
EXECUTIVE SECRETARY PAQUITO N. OCHOA, HON. MICHAEL
FREDERICK L. MUSNGI, HON. MA. GERALDINE FAITH A. ECONG, HON.
DANILO S. SANDOVAL, HON. WILHELMINA B. JORGE-WAGAN, HON.
ROSANA FE ROMERO-MAGLAYA, HON. MERIANTHE PACITA M.
ZURAEK, HON. ELMO M. ALAMEDA, and HON. VICTORIA C.
FERNANDEZ-BERNARDO, Respondents
RESOLUTION
LEONARDO-DE CASTRO, J.:
In its Decision dated November 29, 2016, the Court En Banc held:
WHEREFORE, premises considered, the Court DISMISSES the instant
Petition for Quo Warranto and Certiorari and Prohibition for lack of merit. The
Court DECLARES the clustering of nominees by the Judicial and Bar Council
UNCONSTITUTIONAL, and the appointments of respondents Associate
Justices Michael Frederick L. Musngi and Geraldine Faith A. Econg, together
with the four other newly-appointed Associate Justices of the
Sandiganbayan, as VALID. The Court further DENIES the Motion for
Intervention of the Judicial and Bar Council in the present Petition, but
ORDERS the Clerk of Court En Banc to docket as a separate administrative
matter the new rules and practices of the Judicial and Bar Council which the
Court took cognizance of in the preceding discussion as Item No. 2: the
deletion or non-inclusion in JBC No. 2016-1, or the Revised Rules of the
Judicial and Bar Council, of Rule 8, Section 1 of JBC-009; and Item No. 3:
the removal of incumbent Senior Associate Justices of the Supreme Court as
consultants of the Judicial and Bar Council, referred to in pages 3 5 to 40 of
this Decision. The Court finally DIRECTS the Judicial and Bar Council to file
its comment on said Item Nos. 2 and 3 within thirty (30) days from notice.1
I and not a judgment in rem, and a decision rendered in violation of a party's
THE JBC MOTIONS
The Judicial and Bar Council (JBC) successively filed a Motion for
Reconsideration (with Motion for the Inhibition of the Ponente) on December
dated 29 November 2016) on February 6, 2017.
At the outset, the Court notes the revelation of the JBC in its Motion for
Reconsideration-in-Intervention that it is not taking any position in this
particular case on President Aquino's appointments to the six newly-created
positions of Sandiganbayan Associate Justice. The Court quotes the relevant
portions from the Motion, as follows:
The immediate concern of the JBC is this Court's pronouncement that
the former's act of submitting six lists for six vacancies was
unconstitutional. Whether the President can cross-reach into the lists is
not the primary concern of the JBC in this particular case. At another
time, perhaps, it may take a position. But not in this particular situation
involving the newly created positions in the Sandiganbayan in view of
the lack of agreement by the JBC Members on that issue.
What the President did with the lists, for the purpose of this particular
dispute alone as far as the JBC is concerned, was the President's
exclusive domain.2
Nonetheless, the JBC did not categorically withdraw the arguments raised in
its previous Motions, and even reiterated and further discussed said
arguments, and raised additional points in its Motion for Reconsideration-in-
Intervention. Hence, the Court is still constrained to address said arguments
in this Resolution.
In its Motion for Reconsideration (with Motion for Inhibition of the Ponente)
the JBC argues as follows: (a) Its Motion for Intervention was timely filed on
November 26, 2016, three days before the promulgation of the Decision in
the instant case; (b) The JBC has a legal interest in this case, and its
intervention would not have unduly delayed or prejudiced the adjudication of
the rights of the original parties; (c) Even assuming that the Motion for
Intervention suffers procedural infirmities, said Motion should have been
granted for a complete resolution of the case and to afford the JBC due
process; and (d) Unless its Motion for Intervention is granted by the Court,
the JBC is not bound by the questioned Decision because the JBC was
neither a party litigant nor impleaded as a party in the case, the JBC was
deprived of due process, the assailed Decision is a judgment in personam
right to due process is void for lack of jurisdiction.
On the merits of the case, the JBC asserts that in submitting six short lists for
six vacancies, it was only acting in accordance with the clear and
unambiguous mandate of Article VIII, Section 93 of the 1987 Constitution for
the JBC to submit a list for every vacancy. Considering its independence as
a constitutional body, the JBC has the discretion and wisdom to perform its
mandate in any manner as long as it is consistent with the Constitution.
According to the JBC, its new practice of "clustering," in fact, is more in
accord with the purpose of the JBC to rid the appointment process to the
Judiciary from political pressure as the President has to choose only from the
nominees for one particular vacancy. Otherwise, the President can choose
whom he pleases, and thereby completely disregard the purpose for the
creation of the JBC. The JBC clarifies that it numbered the vacancies, not to
influence the order of precedence, but for practical reasons, i.e., to
distinguish one list from the others and to avoid confusion. The JBC also
points out that the acts invoked against the JBC are based on practice or
custom, but "practice, no matter how long continued, cannot give rise to any
vested right." The JBC, as a constitutional body, enjoys independence, and
as such, it may change its practice from time to time in accordance with its
wisdom.
Lastly, the JBC moves for the inhibition of the ponente of the assailed
Decision based on Canon 3, Section 5 of the New Code of Judicial Conduct
for Philippine Judiciary.4 The JBC alleges that the ponente, as consultant of
the JBC from 2014 to 2016, had personal knowledge of the voting
procedures and format of the short lists, which are the subject matters of this
case. The ponente was even present as consultant during the meeting on
October 26, 2015 when the JBC voted upon the candidates for the six new
positions of Associate Justice of the Sandiganbayan created under Republic
Act No. 10660. The JBC then expresses its puzzlement over the ponente 's
participation in the present proceedings, espousing a position contrary to that
of the JBC. The JBC questions why it was only in her Decision in the instant
case did the ponente raise her disagreement with the JBC as to the
clustering of nominees for each of the six simultaneous vacancies for
Sandiganbayan Associate Justice. The JBC further quoted portions of the
assailed Decision that it claims bespoke of the ponente 's "already-arrived-at"
conclusion as to the alleged ill acts and intentions of the JBC. Hence, the
JBC submits that such formed inference will not lend to an even-handed
consideration by the ponente should she continue to participate in the case.
Ultimately, the JBC prays:
IN VIEW OF THE FOREGOING, it is respectfully prayed that the DECISION
dated 29 November 2016 be reconsidered and set aside and a new one be
issued granting the Motion for Intervention of the JBC.
It is likewise prayed that the ponente inhibit herself from further participating
in this case and that the JBC be granted such other reliefs as are just and
equitable under the premises.5
The JBC subsequently filed a Motion for Reconsideration-in-Intervention (Of
the Decision dated 29 November 2016), praying at the very beginning that it
be deemed as sufficient remedy for the technical deficiency of its Motion for
Intervention (i.e., failure to attach the pleading-in-intervention) and as
Supplemental Motion for Reconsideration of the denial of its Motion for
Intervention.
The JBC, in its latest Motion, insists on its legal interest, injury, and standing
to intervene in the present case, as well as on the timeliness of its Motion for
Intervention.
The JBC proffers several reasons for not immediately seeking to intervene in
the instant case despite admitting that it received copies of the appointments
of the six Sandiganbayan Associate Justices from the Office of the President
(OP) on January 25, 2016, to wit: (a) Even as its individual Members
harbored doubts as to the validity of the appointments of respondents
Michael Frederick L. Musngi (Musngi) and Geraldine Faith A. Econg (Econg)
as Sandiganbayan Associate Justices, the JBC agreed as a body in an
executive session that it would stay neutral and not take any legal position on
the constitutionality of said appointments since it "did not have any legal
interest in the offices of Associate Justices of the Sandiganbayan"; (b) None
of the parties prayed that the act of clustering by the JBC be declared
unconstitutional; and (c) The JBC believed that the Court would apply the
doctrine of presumption of regularity in the discharge by the JBC of its official
functions and if the Court would have been inclined to delve into the validity
of the act of clustering by the JBC, it would order the JBC to comment on the
matter.
The JBC impugns the significance accorded by the ponente to the fact that
Chief Justice Maria Lourdes P. A. Sereno (Sereno), Chairperson of the JBC,
administered the oath of office of respondent Econg as Sandiganbayan
Associate Justice on January 25, 2016. Chief Justice Serena's act should not
be taken against the JBC because, the JBC reasons, Chief Justice Sereno
only chairs the JBC, but she is not the JBC, and the administration of the
oath of office was a purely ministerial act.
The JBC likewise disputes the ponente 's observation that clustering is a
totally new practice of the JBC. The JBC avers that even before Chief Justice
Sereno's Chairmanship, the JBC has generally followed the rule of one short
list for every vacancy in all first and second level trial courts. The JBC has
followed the "one list for every vacancy" rule even for appellate courts since
2013. The JBC even recalls that it submitted on August 17, 2015 to then
President Benigno Simeon C. Aquino III (Aquino) four separate short lists for
four vacancies in the Court of Appeals; and present during the JBC
deliberations were the ponente and Supreme Court Associate Justice
Presbitero J. Velasco, Jr. (Velasco) as consultants, who neither made any
comment on the preparation of the short lists.
On the merits of the Petition, the JBC maintains that it did not exceed its
authority and, in fact, it only faithfully complied with the literal language of
Article VIII, Section 9 of the 1987 Constitution, when it prepared six short lists
for the six vacancies in the Sandiganbayan. It cites the cases of Atong
Paglaum, Inc. v. Commission on Elections6 and Ocampo v. Enriquez,7
wherein the Court allegedly adopted the textualist approach of constitutional
interpretation.
The JBC renounces any duty to increase the chances of appointment of
every candidate it adjudged to have met the minimum qualifications. It
asserts that while there might have been favorable experiences with the past
practice of submitting long consolidated short lists, past practices cannot be
used as a source of rights and obligations to override the duty of the JBC to
observe a straightforward application of the Constitution.
The JBC posits that clustering is a matter of legal and operational necessity
for the JBC and the only safe standard operating procedure for making short
lists. It presents different scenarios which demonstrate the need for
clustering, viz., (a) There are two different sets of applicants for the
vacancies; (b) There is a change in the JBC composition during the interval
in the deliberations on the vacancies as the House of Representatives and
the Senate alternately occupy the ex officio seat for the Legislature; (c) The
applicant informs the JBC of his/her preference for assignment in the Cebu
Station or Cagayan de Oro Station of the Court of Appeals because of the
location or the desire to avoid mingling with certain personalities; (d) The
multiple vacancies in newly-opened first and second level trial courts; and (e)
The dockets to be inherited in the appellate court are overwhelming so the
JBC chooses nominees for those particular posts with more years of service
as against those near retirement.
To the JBC, it seems that the Court was in a hurry to promulgate its Decision
on November 29, 2016, which struck down the practice of clustering by the
JBC. The JBC supposes that it was in anticipation of the vacancies in the
Court as a result of the retirements of Supreme Court Associate Justices
Jose P. Perez (Perez) and Arturo D. Brion (Brion) on December 14, 2016
and December 29, 2016, respectively. The JBC then claims that it had no
choice but to submit two separate short lists for said vacancies in the Court
because there were two sets of applicants for the same, i.e., there were 14
applicants for the seat vacated by Justice Perez and 17 applicants for the
seat vacated by Justice Brion.
The JBC further contends that since each vacancy creates discrete and
possibly unique situations, there can be no general rule against clustering.
Submitting separate, independent short lists for each vacancy is the only way
for the JBC to observe the constitutional standards of (a) one list for every
vacancy, and (b) choosing candidates of competence, independence,
probity, and integrity for every such vacancy.
It is also the asseveration of the JBC that it did not encroach on the
President's power to appoint members of the Judiciary. The JBC alleges that
its individual Members gave several reasons why there was an apparent
indication of seniority assignments in the six short lists for the six vacancies
for Sandiganbayan Associate Justice, particularly: (a) The JBC can best
perform its job by indicating who are stronger candidates by giving higher
priority to those in the lower-numbered list; (b) The indication could head off
the confusion encountered in Re: Seniority Among the Four Most Recent
Appointments to the Position of Associate Justices of the Court of Appeals;8
and (c) The numbering of the lists from 16th to 21st had nothing to do with
seniority in the Sandiganbayan, but was only an ordinal designation of the
cluster to which the candidates were included.
The JBC ends with a reiteration of the need for the ponente to inhibit herself
from the instant case as she appears to harbor hostility possibly arising from
the termination of her JBC consultancy.
The prayer of the JBC in its Motion for Reconsideration-in-Intervention reads:
IN VIEW OF THE FOREGOING, it is respectfully prayed that JBC's Motion
for Reconsideration-in-Intervention, Motion for Intervention and Motion for
Reconsideration with Motion for Inhibition of Justice Teresita J. Leonardo-De
Castro of the JBC be granted and/or given due course and that:
1. the Court's pronouncements in the Decision dated 29 November 2016 with
respect to the JBC's submission of six shortlists of nominees to the
Sandiganbayan be modified to reflect that the JBC is deemed to have
followed Section 9, Article VIII of the Constitution in its practice of submitting
one shortlist of nominees for every vacancy, including in submitting on 28
October 2015 six lists to former President Benigno Simeon C. Aquino III for
the six vacancies of the Sandiganbayan, or for the Court to be completely
silent on the matter; and
2. the Court delete the treatment as a separate administrative matter of the
alleged new rules and practices of the JBC, particularly the following: (1) the
deletion or non-inclusion of Rule 8, Section 1 of JBC-009 in JBC No. 2016-1,
or the Revised Rules of the Judicial and Bar Council; and (2) the removal of
incumbent Senior Associate Justices of the Supreme Court as consultants of
the JBC, referred to in pages 35 to 40 of the Decision. And as a
consequence, the Court excuse the JBC from filing the required comment on
the said matters.9
II
THE RULING OF THE COURT
There is no legal or factual basis for the
ponente to inhibit herself from the instant
case.
The Motion for Inhibition of the Ponente filed by the JBC is denied.
The present Motion for Inhibition has failed to comply with Rule 8, Section 2
of the Internal Rules of the Supreme Court,10 which requires that "[a] motion
for inhibition must be in writing and under oath and shall state the grounds
therefor." Yet, even if technical rules are relaxed herein, there is still no valid
ground for the inhibition of the ponente.
There is no ground11 for the mandatory inhibition of the ponente from the
case at bar.
The ponente has absolutely no personal interest in this case. The ponente is
not a counsel, partner, or member of a law firm that is or was the counsel in
the case; the ponente or her spouse, parent, or child has no pecuniary
interest in the case; and the ponente is not related to any of the parties in the
case within the sixth degree of consanguinity or affinity, or to an attorney or
any member of a law firm who is counsel of record in the case within the
fourth degree of consanguinity or affinity.
The ponente is also not privy to any proceeding in which the JBC discussed
and decided to adopt the unprecedented method of clustering the nominees
for the six simultaneous vacancies for Sandiganbayan Associate Justice into
six separate short lists, one for every vacancy. The ponente does not know
when, how, and why the JBC adopted the clustering method of nomination
for appellate courts and even the Supreme Court.
With due respect to Chief Justice Sereno, it appears that when the JBC
would deliberate on highly contentious, sensitive, and important issues, it
was her policy as Chairperson of the JBC to hold executive sessions, which
excluded the Supreme Court consultants. At the JBC meeting held on
October 26, 2015, Chief Justice Sereno immediately mentioned at the
beginning of the deliberations "that, as the Council had always done in the
past when there are multiple vacancies, the voting would be on a per
vacancy basis."12 Chief Justice Sereno went on to state that the manner of
voting had already been explained to the two ex officio members of the JBC
who were not present during the meeting, namely, Senator Aquilino L.
Pimentel III (Pimentel) and then Department of Justice (DOJ) Secretary
ALFREDO BENJAMIN S. Caguioa (Caguioa).13 Then the JBC immediately
proceeded with the voting of nominees. This ponente was not consulted
before the JBC decision to cluster nominees was arrived at and, therefore,
she did not have the opportunity to study and submit her recommendation to
the JBC on the clustering of nominees.
It is evident that prior to the meeting on October 26, 2015, the JBC had
already reached an agreement on the procedure it would follow in voting for
nominees, i.e., the clustering of the nominees into six separate short lists,
with one short list for each of the six newly-created positions of
Sandiganbayan Associate Justice. That Senator Pimentel and DOJ
Secretary Caguioa, who were not present at the meeting on October 26,
2015, were informed beforehand of the clustering of nominees only proves
that the JBC had already agreed upon the clustering of nominees prior to the
said meeting.
Notably, Chief Justice Sereno inaccurately claimed at the very start of the
deliberations that the JBC had been voting on a per vacancy basis "as the
Council had always done," giving the impression that the JBC was merely
following established procedure, when in truth, the clustering of nominees for
simultaneous or closely successive vacancies in a collegiate court was a new
practice only adopted by the JBC under her Chairmanship. In the Decision
dated November 29, 2016, examples were already cited how, in previous
years, the JBC submitted just one short list for simultaneous or closely
successive vacancies in collegiate courts, including the Supreme Court,
which will again be presented hereunder.
As previously mentioned, it is the practice of the JBC to hold executive
sessions when taking up sensitive matters. The ponente and Associate
Justice Velasco, incumbent Justices of the Supreme Court and then JBC
consultants, as well as other JBC consultants, were excluded from such
executive sessions. Consequently, the ponente and Associate Justice
Velasco were unable to participate in and were kept in the dark on JBC
proceedings/decisions, particularly, on matters involving the nomination of
candidates for vacancies in the appellate courts and the Supreme Court. The
matter of the nomination to the Supreme Court of now Supreme Court
Associate Justice FRANCIS H. Jardeleza (Jardeleza), which became the
subject matter of Jardeleza v. Sereno,14 was taken up by the JBC in such an
executive session. This ponente also does not know when and why the JBC
deleted from JBC No. 2016-1, "The Revised Rules of the Judicial and Bar
Council," what was Rule 8, Section 1 of JBC-009, the former JBC Rules,
which gave due weight and regard to the recommendees of the Supreme
Court for vacancies in the Court. The amendment of the JBC Rules could
have been decided upon by the JBC when the ponente and Associate
Justice Velasco were already relieved by Chief Justice Sereno of their duties
as consultants of the JBC. The JBC could have similarly taken up and
decided upon the clustering of nominees for the six vacant posts of
Sandiganbayan Associate Justice during one of its executive sessions prior
to October 26, 2015.
Hence, even though the ponente and the other JBC consultants were
admittedly present during the meeting on October 26, 2015, the clustering of
the nominees for the six simultaneous vacancies for Sandiganbayan
Associate Justice was already fait accompli. Questions as to why and how
the JBC came to agree on the clustering of nominees were no longer on the
table for discussion during the said meeting. As the minutes of the meeting
on October 26, 2015 bear out, the JBC proceedings focused on the voting of
nominees. It is stressed that the crucial issue in the present case pertains to
the clustering of nominees and not the nomination and qualifications of any
of the nominees. This ponente only had the opportunity to express her
opinion on the issue of the clustering of nominees for simultaneous and
closely successive vacancies in collegiate courts in her ponencia in the
instant case. As a Member of the Supreme Court, the ponente is duty-bound
to render an opinion on a matter that has grave constitutional implications.
Neither is there any basis for the ponente 's voluntary inhibition from the case
at bar. Other than the bare allegations of the JBC, there is no clear and
convincing evidence of the ponente 's purported bias and prejudice, sufficient
to overcome the presumption that she had rendered her assailed ponencia in
the regular performance of her official and sacred duty of dispensing justice
according to law and evidence and without fear or favor. Significant herein is
the following disquisition of the Court on voluntary inhibition of judges in
Gochan v. Gochan,15 which is just as applicable to Supreme Court Justices:
In a string of cases, the Supreme Court has said that bias and
prejudice, to be considered valid reasons for the voluntary inhibition of
judges, must be proved with clear and convincing evidence. Bare
allegations of their partiality will not suffice. It cannot be presumed,
especially if weighed against the sacred oaths of office of magistrates,
requiring them to administer justice fairly and equitably - both to the
poor and the rich, the weak and the strong, the lonely and the well-
connected. (Emphasis supplied.)
Furthermore, it appears from the admitted lack of consensus on the part of
the JBC Members as to the validity of the clustering shows that the
conclusion reached by the ponente did not arise from personal hostility but
from her objective evaluation of the adverse constitutional implications of the
clustering of the nominees for the vacant posts of Sandiganbayan Associate
Justice. It is unfortunate that the JBC stooped so low in casting aspersion on
the person of this ponente instead of focusing on sound legal arguments to
support its position. There is absolutely no factual basis for the uncalled for
and unfair imputation of the JBC that the ponente harbors personal hostility
against the JBC presumably due to her removal as consultant. The ponente
's removal as consultant was the decision of Chief Justice Sereno, not the
JBC. The ponente does not bear any personal grudge or resentment against
the JBC for her removal as consultant. The ponente does not view Chief
Justice Sereno's move as particularly directed against her as Associate
Justice Velasco had been similarly removed as JBC consultant. The ponente
has never been influenced by personal motive in deciding cases. The
ponente, instead, perceives the removal of incumbent Supreme Court
Justices as consultants of the JBC as an affront against the Supreme Court
itself as an institution, since the evident intention of such move was to keep
the Supreme Court in the dark on the changes in rules and practices
subsequently adopted by the JBC, which, to the mind of this ponente, may
adversely affect the exercise of the supervisory authority over the JBC
vested upon the Supreme Court by the Constitution.
All the basic issues raised in the Petition
had been thoroughly passed upon by the
Court in its Decision dated November 29,
2016 and the JBC already expressed its
disinterest to question President Aquino's
"cross-reaching" in his appointment of the
six new Sandiganbayan Associate Justices.
Even if the Motion for Reconsideration and Motion for Reconsideration-in-
Intervention of the JBC, praying for the grant of its Motion for Intervention
and the reversal of the Decision dated November 29, 2016, are admitted into
the records of this case and the issues raised and arguments adduced in the
said two Motions are considered, there is no cogent reason to reverse the
Decision dated November 29, 2016, particularly, in view of the admission of
the JBC of the lack of unanimity among the JBC members on the issue
involving the clustering of nominees for the six simultaneous vacancies for
Sandiganbayan Associate Justice and their disinterest to question the "cross-
reaching" or non-observance by President Aquino of such clustering.
Hence, the Court will no longer belabor the issue that only three JBC
Members signed the Motion for Intervention and Motion for Reconsideration
and only four JBC Members signed the Motion for Reconsideration-in-
Intervention, as well as the fact that Chief Justice Sereno, as Chairperson of
the JBC, did not sign the three Motions.
To determine the legal personality of the signatories to file the JBC Motions,
the Court has accorded particular significance to who among the JBC
Members signed the Motions and to Chief Justice Sereno's act of
administering the oath of office to three of the newly-appointed
Sandiganbayan Associate Justices, including respondent Econg, in resolving
the pending Motions of the JBC. However, in its Motion for Reconsideration-
in-Intervention, the JBC now reveals that not all of its Members agree on the
official position to take in the case of President Aquino's appointment of the
six new Sandiganbayan Associate Justices. Thus, the position of the JBC on
the clustering of the nominees for the six simultaneous vacancies for
Sandiganbayan Associate Justice rests on shaky legal ground.
The JBC takes exception as to why the Court allowed the Petition at bar
even when it did not strictly comply with the rules, as it was filed beyond the
60-day period for filing a petition for certiorari. The Court, in its Decision
dated November 29, 2016, gave consideration to petitioners' assertion that
they had to secure first official copies of the six short lists before they were
able to confirm that President Aquino, in appointing the six new
Sandiganbayan Associate Justices, actually disregarded the clustering of
nominees into six separate short lists. While the Court is hard-pressed to
extend the same consideration to the JBC which made no immediate effort to
explain its failure to timely question or challenge the appointments of
respondents Econg and Musngi as Sandiganbayan Associate Justices
whether before the OP or the courts, the Court will nevertheless now allow
the JBC intervention by considering the issues raised and arguments
adduced in the Motion for Reconsideration and Motion for Reconsideration-
in-Intervention of the JBC in the interest of substantial justice.
Incidentally, it should be mentioned that the JBC reproaches the Court for
supposedly hurrying the promulgation of its Decision on November 29, 2016
in anticipation of the impending vacancies in the Supreme Court due to the
retirements of Associate Justices Perez and Brion in December 2016. On the
contrary, it appears that it was the JBC which hurriedly proceeded with the
two separate publications on August 4, 2016 and August 18, 2016 of the
opening of the application for the aforesaid vacancies, respectively, which
was contrary to previous practice, even while the issue of clustering was set
to be decided by the Court. Moreover, a scrutiny of the process the Petition
went through before its promulgation negates any haste on the part of the
Court. Bear in mind that the Petition at bar was filed on May 1 7, 2016 and
petitioners' Reply, the last pleading allowed by the Court in this case, was
filed on August 3, 2016. The draftponencia was calendared in the agenda of
the Supreme Court en bane, called again, and deliberated upon several
times before it was actually voted upon on November 29, 2016. Indeed, it
appears that it was the JBC which rushed to release the separate short lists
of nominees for the said Supreme Court vacancies despite knowing the
pendency of the instant Petition and its own filing of a Motion for Intervention
herein on November 28, 2016. The JBC went ahead with the release of
separate short lists of nominees for the posts of Supreme Court Associate
Justice vice retired Associate Justices Perez and Brion on December 2, 2016
and December 9, 2016, respectively.
Even if the Court allows the intervention of the JBC, as it will now do in the
case at bar, the arguments of the JBC on the merits of the case fail to
persuade the Court to reconsider its Decision dated November 29, 2016.
a. The clustering of nominees for the
six vacancies in the Sandiganbayan
by the JBC impaired the President's
power to appoint members of the
Judiciary and to determine the
seniority of the newly-appointed
Sandiganbayan Associate Justices.
Noteworthy is the fact that the Court unanimously voted that in this case of
six simultaneous vacancies for Sandiganbayan Associate Justice, the JBC
acted beyond its constitutional mandate in clustering the nominees into six
separate short lists and President Aquino did not commit grave abuse of
discretion in disregarding the said clustering.
The JBC invokes its independence, discretion, and wisdom, and maintains
that it deemed it wiser and more in accord with Article VIII, Section 9 of the
1987 Constitution to cluster the nominees for the six simultaneous vacancies
for Sandiganbayan Associate Justice into six separate short lists. The
independence and discretion of the JBC, however, is not without limits. It
cannot impair the President's power to appoint members of the Judiciary and
his statutory power to determine the seniority of the newly-appointed
Sandiganbayan Associate Justices. The Court cannot sustain the strained
interpretation of Article VIII, Section 9 of the 1987 Constitution espoused by
the JBC, which ultimately curtailed the President's appointing power.
In its Decision dated November 29, 2016, the Court ruled that the clustering
impinged upon the President's appointing power in the following ways: The
President's option for every vacancy was limited to the five to seven
nominees in each cluster. Once the President had appointed a nominee from
one cluster, then he was proscribed from considering the other nominees in
the same cluster for the other vacancies. All the nominees applied for and
were found to be qualified for appointment to any of the vacant Associate
Justice positions in the Sandiganbayan, but the JBC failed to explain why
one nominee should be considered for appointment to the position assigned
to one specific cluster only. Correspondingly, the nominees' chance for
appointment was restricted to the consideration of the one cluster in which
they were included, even though they applied and were found to be qualified
for all the vacancies. Moreover, by designating the numerical order of the
 vacancies, the JBC established the seniority or order of preference of the Secretary, OP, for 4-
new Sandiganbayan Associate Justices, a power which the law (Section 1, 1/2 years
paragraph 3 of Presidential Decree No. 160616), rules (Rule II, Section 1 (b)
of the Revised Internal Rules of the Sandiganbayan17), and jurisprudence18th Associate Justice Geraldine Faith A. 21st Associate Justice Former Judge,
(Re: Seniority Among the Four Most Recent Appointments to the Position of Econg Regional Trial Court
Associate Justices of the Court of Appeals18), vest exclusively upon the (RTC), Cebu, for 6
President. years Chief of Office,
Philippine Mediation
b. Clustering can be used as a device to Center (PMC)
favor or prejudice a qualified Philippine Judicial
nominee. Academy (PHILJA)
19th Associate Justice Maria Theresa V. 17th Associate Justice Judge, RTC, Malolos
The JBC avers that it has no duty to increase the chances of appointment of Mendoza-Arcega Bulacan, for 10 years
every candidate it has adjudged to have met the minimum qualifications for a
judicial post. The Court does not impose upon the JBC such duty, it only 20th Associate Justice Karl B. Miranda 20th Associate Justice Assistant Solicitor
requires that the JBC gives all qualified nominees fair and equal General, Office of the
opportunity to be appointed. The clustering by the JBC of nominees for Solicitor General
simultaneous or closely successive vacancies in collegiate courts can (OSG), for 15 years
actually be a device to favor or prejudice a particular nominee. A favored
21st Associate Justice Zaldy V. Trespeses 18th Associate Justice Judicial Staff Head,
nominee can be included in a cluster with no other strong contender to
Office of the Chief
ensure his/her appointment; or conversely, a nominee can be placed in a
Justice (OCJ),
cluster with many strong contenders to minimize his/her chances of
Supreme Court, for 2
appointment.
years
Without casting aspersion or insinuating ulterior motive on the part of the
JBC - which would only be highly speculative on the part of the Court - It would be safe to say that all the aforementioned six nominees were strong
hereunder are different scenarios, using the very same circumstances and contenders. If all six nominees were placed in the same cluster, then only
nominees in this case, to illustrate how clustering could be used to favor or one of them would have been actually appointed as Sandiganbayan
prejudice a particular nominee and subtly influence President Aquino's Associate Justice and the other five could no longer be considered for the
appointing power, had President Aquino faithfully observed the clustering. still unfilled vacancies. If then Atty. Zaldy V. Trespeses (Trespeses), Judicial
Staff Head, OCJ, was included in the cluster with respondent Econg, PHILJA
The six nominees actually appointed by President Aquino as Sandiganbayan Chief of Office for PMC, and respondent Musngi, Undersecretary for Special
Associate Justices were the following: Concerns and Chief of Staff of the Executive Secretary, OP, then he would
have lesser chance of being appointed as he would have to vie for a single
vacancy with two other strong contenders; and only one of the three would
CANCY IN THE PERSON APPOINTED SHORT LISTED FOR FORMER POSITIONhave been appointed. Evidently, the appointments to the six simultaneous
NDIGANBAYAN HELD vacancies for Sandiganbayan Associate Justice would have been different by
simply jumbling the clusters of nominees. Even if we go back in history, had
h Associate Justice Michael Frederick L. 21st Associate Justice Undersecretary for the JBC clustered the nominees for the posts vacated by Supreme Court
Musngi Special Concerns/ Associate Justices Leonardo A. Quisumbing (Quisumbing) and Minita V.
Chief of Staff of the Chico-Nazario (Chico-Nazario), and if Associate Justices Perez and Jose
Executive Secretary,Catral Mendoza (Mendoza) were together in the same cluster, then only one
OP, for 5 years of them would have been appointed. Also, had the JBC clustered the
h Associate Justice Reynaldo P. Cruz 19th Associate Justice Undersecretary, Officenominees for the vacancies resulting from the retirements of Supreme Court
of the Executive Associate Justices Antonio Eduardo B. Nachura (Nachura) and Conchita
Carpio Morales (Carpio Morales), and if Associate Justices Bienvenido L.
Reyes (Reyes) and ESTELA M. Perlas-Bernabe (Perlas-Bernabe) were
together in the same cluster, then the appointment of one of them would
have already excluded the other.
c. There are no objective criteria,
standards, or guidelines for the
clustering of nominees by the JBC.
The problem is that the JBC has so far failed to present a legal, objective,
and rational basis for determining which nominee shall be included in a
cluster. Simply saying that it is the result of the deliberation and voting by the
JBC for every vacancy is unsatisfactory. A review of the voting patterns by
the JBC Members for the six simultaneous vacancies for Sandiganbayan
Associate Justice only raises more questions and doubts than answers. It
would seem, to the casual observer, that the Chief Justice and the four
regular JBC Members exercised block voting most of the time. Out of the 89
candidates for the six vacancies, there were a total of 3 7 qualified nominees
spread across six separate short lists. Out of the 37 qualified nominees, the
Chief Justice and the four regular JBC Members coincidentally voted for the
same 28 nominees in precisely the same clusters, only varying by just one
vote for the other nine nominees.
It is also interesting to note that all the nominees were listed only once in just
one cluster, and all the nominees subsequently appointed as Sandiganbayan
Associate Justice were distributed among the different clusters, except only
for respondents Econg and Musngi. Was this by chance or was there already
an agreement among the Chief Justice and the regular JBC Members to limit
the nomination of a candidate to a specific cluster for one specific vacancy,
thus, excluding the same candidate from again being nominated in a different
cluster for another vacancy? It is understandable that the Chief Justice and
the four regular JBC Members would agree on whom to nominate because
their nominations were based on the qualifications of the candidates. What is
difficult to comprehend is how they determined the distribution of the
nominees to the different clusters in the absence of any criteria or standard
to be observed in the clustering of nominees. This was never explained by
the JBC in any of its Motions even when the issue of clustering is vital to this
case. Resultantly, the Court also asks why were respondents Econg and
Musngi nominated in a single cluster? And why was then Atty. Trespeses not
included in the same cluster as respondents Econg and Musngi, or the
clusters of then Undersecretary Reynaldo P. Cruz, RTC Judge Maria
Theresa V. Mendoza-Arcega, or Assistant Solicitor General Karl B. Miranda?
Furthermore, what criteria was used when Chief Justice Sereno and the
other four regular JBC Members voted for then Atty. Trespeses for only one
particular cluster, i.e., for the 18th Sandiganbayan Associate Justice, and
nowhere else? Atty. Trespeses did not receive any vote in the other clusters
except for the lone vote for him of an ex officio JBC Member for the vacancy
for the 21st Sandiganbayan Associate Justice.
The Court emphasizes that the requirements and qualifications, as well as
the powers, duties, and responsibilities are the same for all vacant posts in a
collegiate court, such as the Sandiganbayan; and if an individual is found to
be qualified for one vacancy, then he/she is found to be qualified for all the
other vacancies - there are no distinctions among the vacant posts. It is
improbable that the nominees expressed their desire to be appointed to only
a specific vacant position and not the other vacant positions in the same
collegiate court, when neither the Constitution nor the law provides a specific
designation or distinctive description for each vacant position in the collegiate
court. The JBC did not cite any cogent reason in its Motion for
Reconsideration-in-Intervention for assigning a nominee to a particular
cluster/vacancy. The Court highlights that without objective criteria,
standards, or guidelines in determining which nominees are to be included in
which cluster, the clustering of nominees for specific vacant posts seems to
be at the very least, totally arbitrary. The lack of such criteria, standards, or
guidelines may open the clustering to manipulation to favor or prejudice a
qualified nominee.
d. There is technically no clustering of
nominees for first and second level
trial courts.
The Court further points out that its Decision dated November 29, 2016 only
discussed vacancies in collegiate courts. The constant referral by the JBC to
separate short lists of nominees for vacant judgeship posts in first and
second level trial courts as proof of previous clustering is inapt. The separate
short lists in such situations are technically not clustering as the vacancies
happened and were announced at different times and candidates applied for
specific vacancies, based on the inherent differences in the location and
jurisdiction of the trial courts, as well as the qualifications of nominees to the
same, hence, justifying a separate short list for each vacant post.
e. While clustering of nominees was
observed in the nominations for
vacancies in the Court of Appeals in
2015, it escaped scrutiny as the
appointments to said vacancies were
not challenged before the Court.
As an example of previous clustering in a collegiate court, the JBC attached
to its Motion for Reconsideration-in-Intervention a transmittal letter dated
August 1 7, 2015 of the JBC addressed to President Aquino, which divided
the nominees into four clusters for the four vacancies for Court of Appeals
Associate Justice. The JBC contends that during the deliberations on said
nominations, the ponente and Supreme Court Associate Justice Velasco
were both present as JBC consultants but did not raise any objection.
While it may be true that the JBC already observed clustering in 2015, it is
still considered a relatively new practice, adopted only under Chief Justice
Sereno's Chairmanship of the JBC. The clustering then escaped scrutiny as
no party questioned the appointments to the said vacancies. The view of the
consultants was also not solicited or requested by the JBC. The Court now
observes that the vacancies for Court of Appeals Associate Justice in 2015
were not all simultaneous or closely successive, most of which occurring
months apart, specifically, vice the late Associate Justice Michael P. Elbinias
who passed away on November 20, 2014; vice retired Associate Justice
Rebecca De Guia-Salvador, who opted for early retirement effective on
January 31, 2015; vice Associate Justice Hakim S. Abdulwahid, who
compulsorily retired on June 12, 2015; and vice Associate Justice Isaias P.
Dicdican who compulsorily retired on July 4, 2015. Even so, the JBC
published a single announcement for all four vacancies on March 15, 2015,
with the same deadlines for submission of applications and supporting
documents. This is in stark contrast to the two-week interval between the
compulsory retirements of Supreme Court Associate Justices Perez and
Brion on December 14, 2016 and December 29, 2016, respectively, for which
the JBC still made separate publications, required submission of separate
applications, separately processed the applications, and submitted separate
short lists. Additionally, it is noteworthy that the nominations for the four
vacant posts of Court of Appeals Associate Justice were contained in a
single letter dated August 1 7, 2015, addressed to President Aquino, through
then Executive Secretary Paquito N. Ochoa, Jr., whereas in the case of the
Sandiganbayan, the JBC submitted six separate letters, all dated October 26,
2015, transmitting one short list for each of the six vacancies. The separate
letters of transmittal further reinforce the intention of the JBC to prevent the
President from "cross-reaching" or disregarding the clustering of nominees
for the six vacancies for Sandiganbayan Associate Justice and, thus, unduly
limit the President's exercise of his power to appoint members of the
Judiciary.
f. The separate short lists for the
current vacancies in the Supreme
Court are not in issue in this case,
but has been brought up by the JBC
in its Motion for Reconsideration-in-
Intervention.
The Court takes the occasion herein to clarify that the application of its ruling
in the Decision dated November 29, 2017 to the situation involving closely
successive vacancies in a collegiate court may be properly addressed in an
actual case which squarely raises the issue. It also bears to stress that the
current vacancies in the Supreme Court as a result of the compulsory
retirements of Associate Justices Perez and Brion are not in issue in this
case, but has been brought to the fore by the JBC itself in its Motion for
Reconsideration-in-Intervention. Therefore, the Court will refrain from making
any pronouncements on the separate short lists of nominees submitted by
the JBC to President Rodrigo Roa Duterte (Duterte) on December 2, 2016
and December 9, 2016 so as not to preempt the President's decision on how
to treat the separate short lists of nominees for the two current vacancies in
the Supreme Court. The Court will only address the statements made by the
JBC in relation to said short lists by reciting some relevant historical facts
relating to the filling-up of previous vacancies in the Supreme Court.
The JBC avers that it had no choice but to submit separate short lists of
nominees to President Duterte for the vacancies for Supreme Court
Associate Justice vice Associate Justices Perez and Brion, who retired on
December 14, 2016 and December 29, 2016, respectively, because there
were different sets of applicants for each, with 14 applicants for the seat
vacated by Associate Justice Perez and 17 applicants for the seat vacated
by Associate Justice Brion. The situation is the own doing of the JBC, as the
JBC announced the expected vacancies left by the compulsory retirements
of Associate Justices Perez and Brion, which were merely two weeks apart,
through two separately paid publications on August 4, 2016 and August 18,
2016, respectively, in newspapers of general circulation; invited the filing of
separate applications for the vacancies with different deadlines; and
separately processed the applications of candidates to the said vacancies.
The JBC would inevitably end up with two different sets of nominees, one set
for the position vacated by Justice Perez and another set for that vacated by
Justice Brion, notwithstanding that the JBC undeniably found all nominees in
both sets to be qualified to be appointed as Associate Justice of the Supreme
Court, as they all garnered at least four votes.
There had been no similar problems in the past because the JBC jointly
announced simultaneous or closely successive vacancies in the Supreme
Court in a single publication, invited the filing by a candidate of a single
application for all the vacancies on the same deadline, jointly processed all
applications, and submitted a single list of qualified nominees to the
President, thus, resulting in a simple, inexpensive, and efficient process of
nomination. Such was the case when the JBC announced the two vacancies
for Supreme Court Associate Justice following the retirements of Associate
Justices Quisumbing and Chico-Nazario in 2009. Pertinent portions of the
JBC publication are reproduced below:
The Judicial and Bar Council (JBC) announces the opening, for application or
recommendation, of the: two (2) forthcoming vacant positions of
ASSOCIATE JUSTICE OF THE SUPREME COURT vice Hon. Leonardo A.
Quisumbing and Hon. Minita V. Chico-Nazario, who will compulsorily
retire on 6 November and 5 December 2009, respectively, x x x
Applications or recommendation for the two (2) positions in the Supreme
Court must be submitted not later than 28 September 2009 (Monday) x x x
to the JBC Secretariat, 2nd Flr. Centennial Bldg., Supreme Court, Padre
Faura St., Manila (Tel. No. 552-9512; Fax No. 552-9607; email address jbc
_supreme court@yahoo.com.ph or jbc@sc.judiciary.gov.ph). Applicants or
recommendees must submit six (6) copies of the following:
x x xx
The JBC, then headed by Supreme Court Chief Justice Reynato S. Puno,
submitted to President Gloria Macapagal-Arroyo (Macapagal-Arroyo) a single
short list dated November 29, 2009 with a total of six nominees for the two
vacancies for Supreme Court Associate Justice, from which, President
Macapagal-Arroyo appointed Associate Justices Perez and Mendoza.
The JBC again announced the two vacancies for Supreme Court Associate
Justice due to the retirements of Associate Justices Nachura and Carpio
Morales, thus:
The Judicial and Bar Council (JBC) announces the opening, for application or
recommendation, of the following positions:
1. ASSOCIATE JUSTICE OF THE SUPREME COURT (vice Hon. Antonio
Eduardo B. Nachura and Hon. Conchita Carpio Morales, who will
compulsorily retire on 13 and 19 June 2011, respectively);
x x xx
Applications or recommendations for vacancies in nos. 1-3 must be filed on
or before 28 March 2011 (Monday) x x x to the JBC Secretariat, 2nd Flr.
Centennial Bldg., Supreme Court, Padre Faura St., Manila (Tel. No. 552-
9512; Fax No. 552-9598; email address jbcsupremecourt@yahoo.com.ph.
Those who applied before these vacancies were declared open must
manifest in writing their interest on or before the said deadline. In case of
recommendations, the recommendees must signify their acceptance either in
the recommendation letter itself or in a separate document.
New applicants or recommendees for positions in the appellate courts must
submit the following on or before 4 April 2011 (Monday) x x x:
x x xx
The single short list dated June 21, 2011, submitted by the JBC, under the
Chairmanship of Supreme Court Chief Justice Renato C. Corona, presented,
for President Aquino's consideration, six nominees for the two vacant posts
of Supreme Court Associate Justice, with President Aquino subsequently
appointing Associate Justices Reyes and Perlas-Bernabe.
How the new procedure adopted by the JBC of submitting two separate lists
of nominees will also affect the seniority of the two Supreme Court Associate
Justices to be appointed to the current vacancies is another issue that may
arise because of the new JBC procedure. Unlike the present two separate
lists of nominees specifying the vacant post to which they are short-listed for
appointment, the short list of nominees submitted by the JBC before did not
identify to which of the vacant positions, when there are more than one
existing vacancies, a qualified candidate is nominated to as there was only
one list of nominees for all vacancies submitted to the President.
Correspondingly, the appointment papers issued by the President, as in the
cases of Supreme Court Associate Justices Perez, Mendoza, Reyes, and
Perlas-Bernabe, did not specify the particular vacant post to which each of
them was appointed. The appointment papers of the afore-named Supreme
Court Associate Justices were all similarly worded as follows:
Pursuant to the provisions of existing laws, you are hereby appointed
ASSOCIATE JUSTICE OF THE SUPREME COURT.
By virtue hereof, you may qualify and enter upon the performance of the
duties and functions of the office, furnishing this Office and the Civil Service
Commission with copies of your Oath of Office.
As earlier stated, the Court makes no ruling on the above-mentioned
divergence between the procedures in the nomination for existing
vacancies in the Supreme Court followed by the JBC before and by the
present JBC as it may be premature to do so and may prejudge
whatever action President Duterte may take on the two separate short
lists of nominees for the current Supreme Court vacancies which were
submitted by the JBC.
g. The designation by the JBC of
numbers to the vacant
Sandiganbayan Associate Justice
posts encroached on the President's
power to determine the seniority of
the justices appointed to the said court.
The JBC contends in its Motion for Reconsideration-in-Intervention that its
individual members have different reasons for designating numbers to the
vacant Sandiganbayan Associate Justice posts. The varying reason/s of
each individual JBC Members raises the concern whether they each fully
appreciated the constitutional and legal consequences of their act, i.e., that it
encroached on the power, solely vested in the President, to determine the
seniority of the justices appointed to a collegiate court. Each of the six short
lists submitted by the JBC to President Aquino explicitly stated that the
nominees were for the Sixteenth (16th), Seventeenth (17th), Eighteenth
(18th), Nineteenth (19th), Twentieth (20th), and Twenty-First (2 Pt)
Sandiganbayan Associate Justice, respectively; and on the faces of said
short lists, it could only mean that President Aquino was to make the
appointments in the order of seniority pre-determined by the JBC, and that
nominees who applied for any of the vacant positions, requiring the same
qualifications, were deemed to be qualified to be considered for appointment
only to the one vacant position to which his/her cluster was specifically
assigned. Whatever the intentions of the individual JBC Members were, they
cannot go against what has been clearly established by law,19 rules,20 and
jurisprudence.21 In its Decision dated November 29, 2016, the Court already
adjudged that:
Evidently, based on law, rules, and jurisprudence, the numerical order of the
Sandiganbayan Associate Justices cannot be determined until their actual
appointment by the President.
It also bears to point out that part of the President's power to appoint
members of a collegiate court, such as the Sandiganbayan, is the power to
determine the seniority or order of preference of such newly appointed
members by controlling the date and order of issuance of said members'
appointment or commission papers. By already designating the numerical
order of the vacancies, the JBC would be establishing the seniority or order
of preference of the new Sandiganbayan Associate Justices even before
their appointment by the President and, thus, unduly arrogating unto itself a
vital part of the President's power of appointment.22
It is also not clear to the Court how, as the JBC avowed in its Motion for
Reconsideration, the clustering of nominees for simultaneous vacancies in
collegiate courts into separate short lists can rid the appointment process to
the Judiciary of political pressure; or conversely, how the previous practice of
submitting a single list of nominees to the President for simultaneous
vacancies in collegiate courts, requiring the same qualifications, made the
appointment process more susceptible to political pressure. The 1987
Constitution itself, by creating the JBC and requiring that the President can
only appoint judges and Justices from the nominees submitted by the JBC,
already sets in place the mechanism to protect the appointment process from
political pressure. By arbitrarily clustering the nominees for appointment to
the six simultaneous vacancies for Sandiganbayan Associate Justice into
separate short lists, the JBC influenced the appointment process and
encroached on the President's power to appoint members of the Judiciary
and determine seniority in the said court, beyond its mandate under the 1987
Constitution. As the Court pronounced in its Decision dated November 29,
2016, the power to recommend of the JBC cannot be used to restrict or limit
the President's power to appoint as the latter's prerogative to choose
someone whom he/she considers worth appointing to the vacancy in the
Judiciary is still paramount. As long as in the end, the President appoints
someone nominated by the JBC, the appointment is valid, and he, not the
JBC, determines the seniority of appointees to a collegiate court.
Finally, the JBC maintains that it is not bound by the Decision dated
November 29, 2016 of the Court in this case on the ground that it is not a
party herein. The JBC prays in its Motion for Reconsideration and Motion for
Reconsideration-in-Intervention, among other reliefs and remedies, for the
Court to reverse its ruling in the Decision dated November 29, 2016 denying
the Motion for Intervention of the JBC in the present case. However, the
Court has now practically allowed the intervention of the JBC in this
case, by taking into consideration the issues raised and arguments adduced
in its Motion for Reconsideration and Motion for Reconsideration-in-
Intervention, but which the Court found to be unmeritorious.
To recapitulate, the Petition at bar challenged President Aquino's
appointment of respondents Econg and Musngi as Sandiganbayan Associate
Justices, which disregarded the clustering by the JBC of the nominees for the
six simultaneous vacancies in said collegiate court into six separate short
lists. The Court ultimately decreed in its Decision dated November 29, 2016
that:
President Aquino validly exercised his discretionary power to appoint
members of the Judiciary when he disregarded the clustering of nominees
into six separate shortlists for the vacancies for the 16th, 17th, 18th, 19th,
20th, and 21st Sandiganbayan Associate Justices. President Aquino merely
maintained the well-established practice, consistent with the paramount
Presidential constitutional prerogative, to appoint the six new Sandiganbayan
Associate Justices from the 37 qualified nominees, as if embodied in one
JBC list. This does not violate Article VIII, Section 9 of the 1987 Constitution
which requires the President to appoint from a list of at least three nominees
submitted by the JBC for every vacancy. To meet the minimum requirement
under said constitutional provision of three nominees per vacancy, there
should at least be 18 nominees from the JBC for the six vacancies for
Sandiganbayan Associate Justice; but the minimum requirement was even
exceeded herein because the JBC submitted for the President's
consideration a total of 37 qualified nominees. All the six newly appointed
Sandiganbayan Associate Justices met the requirement of nomination by the
JBC under Article VIII, Section 9 of the 1987 Constitution. Hence, the upon in this case, and in order not to preempt the decision the President may
appointments of respondents Musngi and Econg, as well as the other four take on the said separate short lists in the exercise of his power to appoint
new Sandiganbayan Associate Justices, are valid and do not suffer from any members of the Judiciary under the Constitution.
constitutional infirmity.23
SO ORDERED.
The declaration of the Court that the clustering of nominees by the JBC for
the simultaneous vacancies that occurred by the creation of six new positions
of Associate Justice of the Sandiganbayan is unconstitutional was only
incidental to its ruling that President Aquino is not bound by such clustering
in making his appointments to the vacant Sandiganbayan Associate Justice
posts. Other than said declaration, the Court did not require the JBC to do or
to refrain from doing something insofar as the issue of clustering of the
nominees to the then six vacant posts of Sandiganbayan Associate Justice
was concerned.

As for the other new rules and practices adopted by the JBC which the Court
has taken cognizance of and docketed as a separate administrative matter
(viz., Item No. 2: the deletion or non-inclusion in JBC No. 2016-1, or the
Revised Rules of the Judicial and Bar Council, of Rule 8, Section 1 of JBC-
009; and Item No. 3: the removal of incumbent Senior Associate Justices of
the Supreme Court as consultants of the Judicial and Bar Council, referred to
in pages 45 to 51 of the Decision dated November 29, 2016), the JBC is
actually being given the opportunity to submit its comment and be heard on
the same. The administrative matter was already raffled to another ponente,
thus, any incident concerning the same should be consolidated in the said
administrative matter.

Regarding the Separate Opinion of Associate Justice Caguioa, it must be

pointed out that he has conceded that the President did not commit an
unconstitutional act in "disregarding the clustering done by the JBC" when he
chose Associate Justices of the Sandiganbayan "outside" of the "clustered"
lists provided by the JBC.

WHEREFORE, premises considered, except for its motion/prayer for

intervention, which the Court has now granted, the Motion for
Reconsideration (with Motion for the Inhibition of the Ponente) and the
Motion for Reconsideration-in-Intervention (Of the Decision dated 29
November 2016) of the Judicial and Bar Council are DENIED for lack of
merit.

Nota bene: The Court has agreed not to issue a ruling herein on the
separate short lists of nominees submitted by the Judicial and Bar Council to
President Rodrigo Roa Duterte for the present vacancies in the Supreme
Court resulting from the compulsory retirements of Associate Justices Jose
P. Perez and Arturo D. Brion because these were not in issue nor deliberated
G.R. No. 158791 February 10, 2006
CIVIL SERVICE COMMISSION, Petitioner,
vs.
DEPARTMENT OF BUDGET AND MANAGEMENT, Respondent.
RESOLUTION
CARPIO MORALES, J.:
Before this Court is the Motion for Reconsideration of respondent
Department of Budget and Management (DBM) praying that this Court
reconsider its Decision dated July 22, 2005 (the Decision) granting the
subject petition.
The DBM assails this Courts interpretation of Article IX (A) Section 5 of the
Constitution, Sections 62, 63, and 64 of the FY 2002 General Appropriations
Act (R.A. No. 9162), and the Resolution of this Court in A.M. No. 92-9-029-
SC (Constitutional Mandate on the Judiciarys Fiscal Autonomy) dated June
3, 1993.
The DBM posits that this Courts ruling that fiscal autonomy means
preference in terms of cash allocation is not supported by the deliberations of
the 1986 Constitutional Commission, particularly the discussions on the draft
article on the Judiciary where the concept of fiscal autonomy was, by its
claim, introduced.
The DBM cites the comments of then Commissioner Blas Ople expressing
concern over "the propensity throughout this Article in its various provisions
to accord the Supreme Court, the lower courts and the judicial system as a
whole, a whole plethora of privileges and immunities that are denied the rest
of the government of the Republic of the Philippines."1
A close reading of Commissioner Oples comments shows, however, that he
was not questioning nor seeking to qualify the concepts of "fiscal autonomy"
and "automatic release" as provided for in what is now Article VIII Section 3
of the Constitution.2 What was then under consideration was the original draft
article on the Judiciary which, with regard to appropriations, provided as
follows:
Section 15. An amount equivalent to not less than two percent of the national
budget shall be automatically appropriated and regularly released for the
judiciary. (Underscoring supplied)
What the original draft thus provided for was automatic appropriation, which
is not the same as automatic release of appropriations. The power to
appropriate belongs to Congress, while the responsibility of releasing
appropriations belongs to the DBM. Commissioner Ople objected to
automatic appropriation, it bears emphasis, not to automatic release of
appropriations.
It was Commissioner Christian Monsod who proposed the substitute
provision that is now Article VIII Section 3 providing for "fiscal autonomy" and
for automatic and regular release of appropriations.
In support of its position, the DBM also cites Commissioner Monsods
explanation that "[t]he whole purpose of that provision is to protect the
independence of the judiciary while at the same time not giving the judiciary
what we call a position of privilege by an automatic percentage." Again, what
Commissioner Monsod objected to was automatic appropriation for the
judiciary, not automatic release of appropriations once approved. The
following statement of Commissioner Monsod, read in its context, does not in
any way support the position taken by the DBM.
The Commissioner will recall that when the provision giving fiscal autonomy
to the judiciary was presented to the body, we were the ones who denied to it
the percentage of the budget because, precisely, we wanted the judiciary to
go through the process of budget-making to justify its budget and to go
through the legislature for that justification. But we also said that after
having gone through this process, it should have fiscal autonomy so that
there will be an automatic and regular release of such funds. The whole
purpose of that provision is to protect the independence of the judiciary
while at the same time not giving the judiciary what we call a position of
privilege by an automatic percentage.3 (Emphasis and underscoring
supplied)
The DBM further claims that the constitutional mandate to automatically and
regularly release funds does not preclude the implementation of a cash
payment schedule for all agencies, including those belonging to the
constitutional fiscal autonomous group (CFAG). It explains the meaning of
"cash payment schedule" in the context of the budgetary process, from the
enactment of the general appropriations law to the release of appropriations,
thus.
After the General Appropriations Act (GAA) is signed into law, this
Department, in coordination with the agency concerned, prepares the
financial plan for the year in accordance with its appropriations under the
GAA. The result of this exercise is embodied in the Agency Budget Matrix
or ABM which reflects the individual obligation authority ceilings of the
agency, called the allotment. An allotment allows the agency to enter into a
contract or otherwise obligate funds although cash has not yet been received
by said agency. Simply put, allotments serve as a guarantee that the national
government will look for cash to support the agencys obligations. Therefore,
the closer the allotment is to the amount of its appropriation, the better.
The approved allotment of an ordinary agency does not cover its full
appropriations, while those for entities vested with fiscal autonomy always
cover the full amount of its appropriations. For instance, allotments for
Personal Service of an ordinary agency only cover those for filled positions.
In contrast, the Personal Service allotments of agencies enjoying fiscal
autonomy are comprehensively released, including those for positions that
are admittedly vacant. At the end of the year, whatever is unspent for
Personal Services, particularly for unfilled positions, translates to savings,
which may be used to augment other items of appropriations.
As emphasized, the ABM of an ordinary agency is disaggregated into those
Needing Clearance and Not Needing Clearance. Pursuant to Budget
Execution Guidelines no. 2000-12 dated August 29, 2000 x x x, the full
allotment of entities belonging to the CFAG is placed under the Not Needing
Clearance column.
Finally, items under the Not Needing Column of an ordinary agency is further
disaggregated to "this release" which represents the initial allotment
authorized under the ABM, and "for later release" which represents the
amount to be released after the conduct of the agency performance review.
In contrast, the total appropriation and allotment of entities belonging to the
CFAG are all placed under "this release" since no agency performance
review is conducted by the DBM on these entities.
xxxx
Thus, in order to ensure that the budgets of agencies vested with fiscal
autonomy are released in full, the DBM in a ministerial capacity, ensures that
the allotments of agencies belonging to the CFAG (i) cover the full amount of
their annual appropriations, and (ii) are not subject to any condition. In other
words, budgets of fiscal autonomous agencies occupy the highest category
in terms of allotment.
xxxx
After the ABMs are issued, the Notices of Cash Allocations (NCAs) are
issued every month to support approved allotments with cash.
Ideally, the NCA should cover in full the monthly allotment of the
agency. The reality, however, is that every national budget is based on
revenue projections, and that there is an ever present risk that these
revenue targets are not met in full during the course of the budget year.
Last FYs 2001 and 2002, for instance, revenue shortfall was at 7.16% and
9.16%, respectively, as shown below under Table 2.
xxxx
Further, not all revenue collections are received at the start of the budget
year. The cash flow of the national government, like most other public
institutions, has its highs and lows depending on the tax calendar. Thus, not
all of the projected revenues are available for spending at the start of the
budget year.
It thus becomes imperative for the Executive Department, through the
DBM, to manage the release of funds through implementation of cash
payment schedules. For instance, if collections for a given month meet the
monthly revenue target, then the NCA for that month shall cover 100% of the
allotment. If, however, collections do not meet the monthly revenue target,
then the NCA to be released may not cover 100% of the allotment. Add a few
more variables, such as amount of deficit and total disbursement of
agencies, then one gets a cash payment schedule that varies on a monthly
basis.4 (Emphasis and underscoring supplied)
The DBM goes on to emphasize that it has no discretion on how much cash
enters petitioners coffers, as cash payment schedules are "dictated by the
amount of revenue collection, borrowings, deficit ceilings and total
disbursement program of the national government"5 ; and if the cash
payment schedule prescribes that the total cash to be released for a given
month is 85% of allotment, then a Notice of Cash Allocation amounting to
85% of each agencys allotment is released for all agencies. It thus contends
that this equality in treatment does not violate the fiscal autonomy of the
agencies belonging to the CFAG, for "since approved allotments of agencies
belonging to the CFAG are higher than ordinary agencies, they automatically
get higher cash allocations."6
The DBMs protestation that it has no discretion on the amount of funds
released to agencies with fiscal autonomy fails. The Court finds that the
DBM, in fact, exercised discretion denied it by the constitutional mandate to
automatically release such funds. Understandably, a shortfall in revenue in
a given year would constrain the DBM not to release the total amount
appropriated by the GAA for the government as a whole during that year.
However, the DBM is certainly not compelled by such circumstance to
proportionately reduce the funds appropriated for each and every agency.
Given a revenue shortfall, it is still very possible for the DBM to release the
full amount appropriated for the agencies with fiscal autonomy, especially
since, as noted in the Decision, the total appropriation for such agencies in
recent years does not even reach 3% of the national budget.7 That the full
amount is, in fact, not fully released during a given fiscal year is plainly
due to a policy decision of the DBM. Such a decision, whether it goes by
the label of "cash payment schedule" or any other term, cannot be reconciled
with the constitutional mandate that the release to these agencies should be
automatic.
Respecting this Courts observation that Sections 62, 63 and 64 of the
General Provisions of the FY2002 GAA reflect the legislative intent to except
entities with fiscal autonomy from the possibility of retention or reduction of
funds in the event of an unmanageable budget deficit, the DBM comments as
follows:
Unfortunately, the sponsorship speech of Cong. Rolando G. Andaya, Jr.
Chairman of the House Committee on Appropriations in justifying the
introduction of Sections 63 and 64 (sic) in the FY 2002 GAA, belies such
contention. x x x In his speech, he states that the incorporation of Section 62
is due to concerns raised by Congressmen on the general impoundment
powers of the President, without distinguishing as to the two types of public
institutions. More revealing is his explanation in introducing Section 63, which
defines unmanageable national government deficit. He states that in order to
discourage the Executive Department from reducing the Internal Revenue
Allotment of local government units, there is need to define the legal
parameters of "unmanageable deficit". Reference to local government units,
which likewise enjoy fiscal autonomy according to the pronouncements of
this Honorable Court [Pimentel, Jr. v. Aguirre, 336 SCRA 201 at 218 (2000)],
reveal the true intent of Congress to cover both agencies vested with fiscal
autonomy and those without. x x x"8 (Underscoring supplied)
The Court, however, has examined the speech of Congressman Andaya and
finds nothing therein that detracts from its ruling. It bears emphasis that this
Court explicitly observed that Sections 62 and 63 refer to government
agencies in general, while Section 64 applies specifically to agencies with
fiscal autonomy. It is in these three provisions read together, and not in
reading each one in isolation, that the distinction intended by the legislature
becomes evident.
When Congressman Andaya introduced Sections 62 and 63, he was thus
speaking of government agencies in general. If he did not then expressly
distinguish between agencies with fiscal autonomy and those without, it was
because there was no pressing need for him to do so. Particularly with
regard to Section 62, his speech would reveal that his attention was on a
matter that did not call for such distinction, namely, the "deep concern,
frustration and despair" expressed by numerous members of Congress "over
the impoundment of appropriations by the Department of Budget and
Management and the Office of the President" which, he explained, provided
the reason behind Section 62 of the GAA.
As for the mention of local governments in Congressman Andayas
introduction of Section 63, the same does not imply that said provision was
meant to include the agencies belonging to the CFAG. In fact, his speech
even suggests that Section 63, rather than itself being an authorization to the
DBM to withhold or reduce appropriations, was merely intended to set a
guiding principle for the DBM in those cases where it already has authority to
withhold or reduce such appropriations.
In the case of LGUs, the Congressman explicitly referred to "the provisions of
the Local Government Code, R.A. 7160 which authorizes the reduction of the
IRA in the event that there is an unmanageable deficit of the National
Government."9 He then stated that Section 63 was prompted by the need to
set parameters in determining the existence of an "unmanageable deficit."
On the other hand, there is no similar authorization for such reduction in the
case of agencies belonging to the CFAG not even during an
"unmanageable deficit" either in the Constitution or in statute. Thus,
notwithstanding the inclusion of LGUs, there is no basis for supposing that
the agencies belonging to the CFAG are also covered by Section 63 of the
GAA.
The DBM furthermore argues that this Courts Resolution of June 3, 1993 in
A.M. No. 92-9-029-SC10 (the Resolution) reading:
After approval by Congress, the appropriations for the Judiciary shall be
automatically and regularly released subject to availability of funds.
(Underscoring supplied)
means that fund releases may still be subject to a cash release program.
In support of this argument, the DBM cites a letter dated May 18, 1993 of
then Chief Presidential Legal Counsel Antonio T. Carpio (now a member of
this Court) to the Secretary of Budget and Management, regarding A.M. No.
92-9-029-SC then pending with this Court.
The letter quotes then Chief Justice Narvasas summary of this Courts
position on the controversy, which summary states, inter alia:
"4) the Court will look to releases by the DBM of funds against the approved
budget of the Judiciary, in the full amount sought and promptly upon notice; it
is willing to consider and pass upon suggestions by the DBM for scheduling August 1990 x x x Interdependence will work only if it is undertaken within
of releases; x x x"(Underscoring supplied) the parameters of the Constitution."

In the same letter, the Chief Presidential Legal Counsel, after considering the WHEREFORE, the Motion for Reconsideration of respondent Department of
Courts position, opined that one of the principles by which the constitutional Budget and Management is DENIED.
mandate on judicial fiscal autonomy can be achieved is that "[a]fter approval
by Congress, the appropriations for the judiciary shall be automatically and SO ORDERED.
regularly released subject to availability of funds" which opinion, the DBM
alleges, is the position adopted by this Court.

Instead of supporting the DBMs position, however, this letter only shows the
consistency of this Court in interpreting "automatic release" as requiring the
full release of appropriations. The Courts willingness to pass upon
suggestions for scheduling of releases in no way implies that it was
assenting to an incomplete or delayed release of funds. Rather, it was a
recognition by this Court that scheduling of releases, as such, does not
violate the Constitution and is, in fact, presupposed in the phrase
"automatically and regularly released."

The phrase "subject to availability of funds" must thus be understood in

harmony with the constitutional mandate to automatically release funds as
the same has been consistently interpreted by this Court. It is not an
authority for the DBM to implement a policy which, although labeled "cash
payment schedule," actually goes beyond mere scheduling of releases and

effects a withholding and reduction of the approved appropriations, as it did

in the present case against petitioner Civil Service Commission.

Finally, while acknowledging the unconstitutionality of imposing a "no report,

no release" policy on agencies clothed with fiscal autonomy, the DBM prays
for a clarification that such agencies are still responsible for the timely
submission to it of financial reports. The Court considers it sufficient to echo
the following statements in the Separate Opinion of former Chief Justice
Hilario G. Davide, Jr.:

This is not to say that agencies vested with fiscal autonomy have no
reporting responsibility at all to the DBM. This is precisely the reason why
guideline No. 5 under the Resolution of 3 June [1993 states that the
Supreme Court, or constitutional commissions clothed with fiscal autonomy
for that matter, may submit reports relative to its appropriation "for records
purposes only." The word "may" is permissive [Dizon v. Encarnacion, 119
Phil. 20, 22 (1963)], as it is an auxiliary verb manifesting "opportunity or
possibility" and, under ordinary circumstances, "implies the possible
existence of something." [Supangan, Jr. v. Santos, G.R. No. 84663, 24
G.R. No. 158791 July 22, 2005
CIVIL SERVICE COMMISSION, Petitioner,
vs.
DEPARTMENT OF BUDGET AND MANAGEMENT, Respondent.
DECISION
CARPIO MORALES, J.:
The Civil Service Commission (petitioner) via the present petition for
mandamus seeks to compel the Department of Budget and Management
(respondent) to release the balance of its budget for fiscal year 2002. At the
same time, it seeks a determination by this Court of the extent of the
constitutional concept of fiscal autonomy.
By petitioners claim, the amount of 215,270,000.00 was appropriated for its
Central Office by the General Appropriations Act (GAA) of 2002, while the
total allocations for the same Office, if all sources of funds are considered,
amount to 285,660,790.44.1 It complains, however, that the total fund
releases by respondent to its Central Office during the fiscal year 2002 was
only 279,853,398.14, thereby leaving an unreleased balance of
5,807,392.30.
To petitioner, this balance was intentionally withheld by respondent on the
basis of its "no report, no release" policy whereby allocations for agencies
are withheld pending their submission of the documents mentioned in
Sections 3.8 to 3.10 and Section 7.0 of National Budget Circular No. 478 on
Guidelines on the Release of the FY 2002 Funds,2 which documents are:
1. Annual Cash Program (ACP)
2. Requests for the Release of Special Allotment Release Order (SARO) and
Notice of Cash Allocation (NCA)
3. Summary List of Checks Issued and Cancelled
4. Statement of Allotment, Obligations and Balances
5. Monthly Statement of Charges to Accounts Payable
6. Quarterly Report of Actual Income
7. Quarterly Financial Report of Operations
8. Quarterly Physical Report of Operations
9. FY 2001 Preliminary and Final Trial Balance
10. Statement of Accounts Payable
Petitioner contends that the application of the "no report, no release" policy
upon independent constitutional bodies of which it is one is a violation of the
principle of fiscal autonomy and, therefore, unconstitutional.
Respondent, at the outset, opposes the petition on procedural grounds. It
contends that first, petitioner did not exhaust administrative remedies as it
could have sought clarification from respondents Secretary regarding the
extent of fiscal autonomy before resorting to this Court. Second, even
assuming that administrative remedies were exhausted, there are no
exceptional and compelling reasons to justify the direct filing of the petition
with this Court instead of the trial court, thus violating the hierarchy of courts.
On the merits, respondent, glossing over the issue raised by petitioner on the
constitutionality of enforcing the "no report, no release" policy, denies having
strictly enforced the policy upon offices vested with fiscal autonomy, it
claiming that it has applied by extension to these offices the Resolution of
this Court in A.M. No. 92-9-029-SC (Constitutional Mandate on the
Judiciarys Fiscal Autonomy) issued on June 3, 1993, 3 particularly one of the
guiding principles established therein governing the budget of the Judiciary,
to wit:
5. The Supreme Court may submit to the Department of Budget and
Management reports of operation and income, current plantilla of personnel,
work and financial plans and similar reports only for recording purposes.
The submission thereof concerning funds previously released shall not be a
condition precedent for subsequent fund releases. (Emphasis and
underscoring supplied)
Respondent proffers at any rate that the delay in releasing the balance of
petitioners budget was not on account of any failure on petitioners part to
submit the required reports; rather, it was due to a shortfall in revenues.4
The rule on exhaustion of administrative remedies invoked by respondent
applies only where there is an express legal provision requiring such
administrative step as a condition precedent to taking action in court. 5 As
petitioner is not mandated by any law to seek clarification from the Secretary
of Budget and Management prior to filing the present action, its failure to do
so does not call for the application of the rule.
As for the rule on hierarchy of courts, it is not absolute. A direct invocation of
this Court's original jurisdiction may be allowed where there are special and
important reasons therefor, clearly and specifically set out in the petition.6
Petitioner justifies its direct filing of the petition with this Court "as the matter
involves the concept of fiscal autonomy granted to [it] as well as other
constitutional bodies, a legal question not heretofore determined and which
only the Honorable Supreme Court can decide with authority and finality". 7
To this Court, such justification suffices for allowing the petition.
Now on the substantive issues.
That the "no report, no release" policy may not be validly enforced against
offices vested with fiscal autonomy is not disputed. Indeed, such policy
cannot be enforced against offices possessing fiscal autonomy without
violating Article IX (A), Section 5 of the Constitution which provides:
Sec. 5. The Commission shall enjoy fiscal autonomy. Their approved
appropriations shall be automatically and regularly released.
In Province of Batangas v. Romulo,8 this Court, in construing the phrase
"automatic release" in Section 6, Article X of the Constitution reading:
Section 6. Local government units shall have a just share, as determined by
law, in the national taxes which shall be automatically released to them,
held:
Websters Third New International Dictionary defines "automatic" as
"involuntary either wholly or to a major extent so that any activity of the will is
largely negligible; of a reflex nature; without volition; mechanical; like or
suggestive of an automaton." Further, the word "automatically" is defined as
"in an automatic manner: without thought or conscious intention." Being
"automatic," thus, connotes something mechanical, spontaneous and
perfunctory. As such the LGUs are not required to perform any act to
receive the "just share" accruing to them from the national coffers. x x x"
(Emphasis and underscoring supplied)9
By parity of construction, "automatic release" of approved annual
appropriations to petitioner, a constitutional commission which is vested with
fiscal autonomy, should thus be construed to mean that no condition to fund
releases to it may be imposed. This conclusion is consistent with the above-
cited June 3, 1993 Resolution of this Court which effectively prohibited the
enforcement of a "no report, no release" policy against the Judiciary which
has also been granted fiscal autonomy by the Constitution.10
Respecting respondents justification for the withholding of funds from
petitioner as due to a shortfall in revenues, the same does not lie. In the first
place, the alleged shortfall is totally unsubstantiated. In the second place,
even assuming that there was indeed such a shortfall, that does not justify
non-compliance with the mandate of above-quoted Article IX (A), Section 5 of
the Constitution.
Asturias Sugar Central, Inc. v. Commissioner of Customs teaches that "[a]n
interpretation should, if possible, be avoided under which a statute or
provision being construed is defeated, or as otherwise expressed, nullified,
destroyed, emasculated, repealed, explained away, or rendered insignificant,
meaningless, inoperative, or nugatory."11
If respondents theory were adopted, then the constitutional mandate to
automatically and regularly release approved appropriations would be
suspended every year, or even every month12 that there is a shortfall in
revenues, thereby emasculating to a significant degree, if not rendering
insignificant altogether, such mandate.
Furthermore, the Constitution grants the enjoyment of fiscal autonomy only to
the Judiciary, the Constitutional Commissions of which petitioner is one, and
the Ombudsman. To hold that petitioner may be subjected to withholding or
reduction of funds in the event of a revenue shortfall would, to that extent,
place petitioner and the other entities vested with fiscal autonomy on equal
footing with all others which are not granted the same autonomy, thereby
reducing to naught the distinction established by the Constitution.
The agencies which the Constitution has vested with fiscal autonomy should
thus be given priority in the release of their approved appropriations over all
other agencies not similarly vested when there is a revenue shortfall.
Significantly, the Year 2002 GAA itself distinguished between two types of
public institutions in the matter of fund releases. With respect to government
agencies in general, the pertinent General Provisions of the GAA read as
follows:
Sec. 62. Prohibition Against Impoundment of Appropriations. No
appropriations authorized in this Act shall be impounded through deduction
or retention, unless in accordance with the guidelines for the imposition
and release of reserves and the rules and regulations for deduction,
retention or deferral of releases shall have been issued by the DBM in
coordination with the House Committee on Appropriations and the Senate
Committee on Finance. Accordingly, all the funds appropriated for the
purposes, programs, projects and activities authorized in this Act, except
those covered by Special Provision No. 1 of the Unprogrammed Fund shall
be regularly and automatically released in accordance with the
established allotment period and system by the DBM without any deduction,
retention or imposition of reserves. (Emphasis and underscoring supplied)
Sec. 63. Unmanageable National Government Budget Deficit. Retention
or reduction of appropriations authorized in this Act shall be effected only in
cases where there is unmanageable national government budget
deficit.
Unmanageable national government budget deficit as used in this Section
shall be construed to mean that the actual national government budget deficit
has exceeded the quarterly budget deficit targets consistent with the full-year
target deficit of P130.0 billion as indicated in the FY 2002 Budget of
Expenditures and Sources of Financing submitted by the President to
Congress pursuant to Section 22, Article VII of the Constitution or there are
clear economic indications of an impending occurrence of such condition, as
determined by the Development Budget Coordinating Committee and
approved by the President. (Emphasis and underscoring supplied)
In contrast, the immediately succeeding provision of the Year 2002 GAA,
which specifically applied to offices vested with fiscal autonomy, stated:
Sec. 64. Appropriations of Agencies Vested with Fiscal Autonomy. Any
provision of law to the contrary notwithstanding, the appropriations
authorized in this Act for the Judiciary, Congress of the Philippines, the
Commission on Human Rights, the Office of the Ombudsman, the Civil
Service Commission, the Commission on Audit and the Commission on
Elections shall be automatically and regularly released. (Emphasis and
underscoring supplied)
Clearly, while the retention or reduction of appropriations for an office is
generally allowed when there is an unmanageable budget deficit, the Year
2002 GAA, in conformity with the Constitution, excepted from such rule the
appropriations for entities vested with fiscal autonomy. Thus, even assuming
that there was a revenue shortfall as respondent claimed, it could not
withhold full release of petitioners funds without violating not only the
Constitution but also Section 64 of the General Provisions of the Year 2002
GAA.
This Court is not unaware that its above-cited June 3, 1993 Resolution also
states as a guiding principle on the Constitutional Mandate on the Judiciarys
Fiscal Autonomy that:
4. After approval by Congress, the appropriations for the Judiciary shall be
automatically and regularly released subject to availability of funds.
(Underscoring supplied)
This phrase "subject to availability of funds" does not, however, contradict
the present ruling that the funds of entities vested with fiscal autonomy
should be automatically and regularly released, a shortfall in revenues
notwithstanding. What is contemplated in the said quoted phrase is a
situation where total revenue collections are so low that they are not
sufficient to cover the total appropriations for all entities vested with fiscal
autonomy. In such event, it would be practically impossible to fully release
the Judiciarys appropriations or any of the entities also vested with fiscal
autonomy for that matter, without violating the right of such other entities to
an automatic release of their own appropriations. It is under that situation that
a relaxation of the constitutional mandate to automatically and regularly
release appropriations is allowed.
Considering that the budget for agencies enjoying fiscal autonomy is only a
small portion of the total national budget, only in the most extreme
circumstances will the total revenue collections fall short of the requirements
of such agencies. To illustrate, in the Year 2002 GAA the budget for
agencies vested with fiscal autonomy amounted only to 14,548,620,000.00,
which is 2.53% of the total appropriations in the amount of
575,123,728,000.00.13 In Year 2003 GAA, which was re-enacted in 2004,
the budget for the same agencies was 13,807,932,000.00, which is 2.27%
of the total appropriations amounting to 609,614,730,000.00.14 And in the
Year 2005, the budget for the same agencies was only 13,601,124,000.00,
which is 2.28% of the total appropriations amounting to
597,663,400,000.00.15
Finally, petitioners claim that its budget may not be reduced by Congress
lower than that of the previous fiscal year, as is the case of the Judiciary,
must be rejected.
For with respect to the Judiciary, Art. VIII, Section 3 of the Constitution
explicitly provides:
Section 3. The Judiciary shall enjoy fiscal autonomy. Appropriations for the
Judiciary may not be reduced by the legislature below the amount
appropriated for the previous year and, after approval, shall be
automatically and regularly released.16 (Emphasis and underscoring
supplied)
On the other hand, in the parallel provision granting fiscal autonomy to
Constitutional Commissions, a similar proscription against the reduction of
appropriations below the amount for the previous year is clearly absent.
Article IX (A), Section 5 merely states:

Section 5. The Commission shall enjoy fiscal autonomy. Their approved

annual appropriations shall be automatically and regularly released.

The plain implication of the omission of the provision proscribing such

reduction of appropriations below that for the previous year is that Congress
is not prohibited from reducing the appropriations of Constitutional
Commissions below the amount appropriated for them for the previous year.

WHEREFORE, the petition is, in light of all the foregoing discussions,

GRANTED. Respondents act of withholding the subject funds from petitioner
due to revenue shortfall is hereby declared UNCONSTITUTIONAL.

Accordingly, respondent is directed to release to petitioner the amount of

Five Million Eight Hundred Seven Thousand, Three hundred Ninety Two
Pesos and Thirty Centavos (5,807,392.30) representing the unreleased
balance of petitioners appropriation for its Central Office by the General
Appropriations Act for
G.R. No. 133486 January 28, 2000
ABS-CBN BROADCASTING CORPORATION, petitioner,
vs.
COMMISSION ON ELECTIONS, respondent.
PANGANIBAN, J.:
The holding of exit polls and the dissemination of their results through mass
media constitute an essential part of the freedoms of speech and of the
press. Hence, the Comelec cannot ban them totally in the guise of promoting
clean, honest, orderly and credible elections. Quite the contrary, exit polls
properly conducted and publicized can be vital tools in eliminating the
evils of election-fixing and fraud. Narrowly tailored countermeasures may be
prescribed by the Comelec so as to minimize or suppress the incidental
problems in the conduct of exit polls, without transgressing in any manner the
fundamental rights of our people.
The Case and the Facts
Before us is a Petition for Certiorari under Rule 65 of the Rules of Court
assailing Commission on Elections (Comelec) en banc Resolution No. 98-
14191 dated April 21, 1998. In the said Resolution, the poll body
RESOLVED to approve the issuance of a restraining order to stop
ABS-CBN or any other groups, its agents or representatives from
conducting such exit survey and to authorize the Honorable
Chairman to issue the same.
The Resolution was issued by the Comelec allegedly upon "information from
[a] reliable source that ABS-CBN (Lopez Group) has prepared a project, with
PR groups, to conduct radio-TV coverage of the elections . . . and to make
[an] exit survey of the . . . vote during the elections for national officials
particularly for President and Vice President, results of which shall be
[broadcast] immediately."2 The electoral body believed that such project
might conflict with the official Comelec count, as well as the unofficial quick
count of the National Movement for Free Elections (Namfrel). It also noted
that it had not authorized or deputized Petitioner ABS-CBN to undertake the
exit survey.
On May 9, 1998, this Court issued the Temporary Restraining Order prayed
for by petitioner. We directed the Comelec to cease and desist, until further
orders, from implementing the assailed Resolution or the restraining order
issued pursuant thereto, if any. In fact, the exit polls were actually conducted
and reported by media without any difficulty or problem.
The Issues
Petitioner raises this lone issue: "Whether or not the Respondent
Commission acted with grave abuse of discretion amounting to a lack or
excess of jurisdiction when it approved the issuance of a restraining order
enjoining the petitioner or any [other group], its agents or representatives
from conducting exit polls during the . . . May 11 elections."3
In his Memorandum,4 the solicitor general, in seeking to dismiss the Petition,
brings up additional issues: (1) mootness and (2) prematurity, because of
petitioner's failure to seek a reconsideration of the assailed Comelec
Resolution.
The Court's Ruling
The Petition5 is meritorious.
Procedural Issues:
Mootness and Prematurity
The solicitor general contends that the petition is moot and academic,
because the May 11, 1998 election has already been held and done with.
Allegedly, there is no longer any actual controversy before us.
The issue is not totally moot. While the assailed Resolution referred
specifically to the May 11, 1998 election, its implications on the people's
fundamental freedom of expression transcend the past election. The holding
of periodic elections is a basic feature of our democratic government. By its
very nature, exit polling is tied up with elections. To set aside the resolution
of the issue now will only postpone a task that could well crop up again in
future elections.6
In any event, in Salonga v. Cruz Pao, the Court had occasion to reiterate
that it "also has the duty to formulate guiding and controlling constitutional
principles, precepts, doctrines, or rules. It has the symbolic function of
educating bench and bar on the extent of protection given by constitutional
guarantees."7 Since the fundamental freedoms of speech and of the press
are being invoked here, we have resolved to settle, for the guidance of
posterity, whether they likewise protect the holding of exit polls and the
dissemination of data derived therefrom.
The solicitor general further contends that the Petition should be dismissed
for petitioner's failure to exhaust available remedies before the issuing forum,
specifically the filing of a motion for reconsideration.
This Court, however, has ruled in the past that this procedural requirement
may be glossed over to prevent a miscarriage of justice,8 when the issue
involves the principle of social justice or the protection of labor,9 when the
decision or resolution sought to be set aside is a nullity,10 or when the need
for relief is extremely urgent and certiorari is the only adequate and speedy
remedy available.11
The instant Petition assails a Resolution issued by the Comelec en banc on
April 21, 1998, only twenty (20) days before the election itself. Besides, the
petitioner got hold of a copy thereof only on May 4, 1998. Under the
circumstances, there was hardly enough opportunity to move for a
reconsideration and to obtain a swift resolution in time or the May 11, 1998
elections. Moreover, not only is time of the essence; the Petition involves
transcendental constitutional issues. Direct resort to this Court through a
special civil action for certiorari is therefore justified.
Main Issue:
Validity of Conducting Exit Polls
An exit poll is a species of electoral survey conducted by qualified individuals
or groups of individuals for the purpose of determining the probable result of
an election by confidentially asking randomly selected voters whom they
have voted for, immediately after they have officially cast their ballots. The
results of the survey are announced to the public, usually through the mass
media, to give an advance overview of how, in the opinion of the polling
individuals or organizations, the electorate voted. In our electoral history, exit
polls had not been resorted to until the recent May 11, 1998 elections.
In its Petition, ABS-CBN Broadcasting Corporation maintains that it is a
responsible member of the mass media, committed to report balanced
election-related data, including "the exclusive results of Social Weather
Station (SWS) surveys conducted in fifteen administrative regions."
It argues that the holding of exit polls and the nationwide reporting their
results are valid exercises of the freedoms of speech and of the press. It
submits that, in precipitately and unqualifiedly restraining the holding and the
reporting of exit polls, the Comelec gravely abused its discretion and grossly
violated the petitioner's constitutional rights.
Public respondent, on the other hand, vehemently denies that, in issuing the
assailed Resolution, it gravely abused its discretion. It insists that the
issuance thereof was "pursuant to its constitutional and statutory powers to
promote a clean, honest, orderly and credible May 11, 1998 elections"; and
"to protect, preserve and maintain the secrecy and sanctity of the ballot." It
contends that "the conduct of exit surveys might unduly confuse and
influence the voters," and that the surveys were designed "to condition the
minds of people and cause confusion as to who are the winners and the
[losers] in the election," which in turn may result in "violence and anarchy."
Public respondent further argues that "exit surveys indirectly violate the
constitutional principle to preserve the sanctity of the ballots," as the "voters
are lured to reveal the contents of ballots," in violation of Section 2, Article V
of the Constitution;12 and relevant provisions of the Omnibus Election
Code.13 It submits that the constitutionally protected freedoms invoked by
petitioner "are not immune to regulation by the State in the legitimate
exercise of its police power," such as in the present case.
The solicitor general, in support of the public respondent, adds that the exit
polls pose a "clear and present danger of destroying the credibility and
integrity of the electoral process," considering that they are not supervised by
any government agency and can in general be manipulated easily. He insists
that these polls would sow confusion among the voters and would undermine
the official tabulation of votes conducted by the Commission, as well as the
quick count undertaken by the Namfrel.
Admittedly, no law prohibits the holding and the reporting of exit polls. The
question can thus be more narrowly defined: May the Comelec, in the
exercise of its powers, totally ban exit polls? In answering this question, we
need to review quickly our jurisprudence on the freedoms of speech and of
the press.
Nature and Scope of Freedoms of Speech and of the Press
The freedom of expression is a fundamental principle of our democratic
government. It "is a 'preferred' right and, therefore, stands on a higher level
than substantive economic or other liberties. . . . [T]his must be so because
the lessons of history, both political and legal, illustrate that freedom of
thought and speech is the indispensable condition of nearly every other form
of freedom."14
Our Constitution clearly mandates that no law shall be passed abridging the
freedom of speech or of the press.15 In the landmark case Gonzales v.
Comelec,16 this Court enunciated that at the very least, free speech and a
free press consist of the liberty to discuss publicly and truthfully any matter of
public interest without prior restraint.
The freedom of expression is a means of assuring individual self-fulfillment,
of attaining the truth, of securing participation by the people in social and
political decision-making, and of maintaining the balance between stability
and change.17 It represents a profound commitment to the principle that
debates on public issues should be uninhibited, robust, and wide open.18 It
means more than the right to approve existing political beliefs or economic
arrangements, to lend support to official measures, or to take refuge in the
existing climate of opinion on any of public consequence. And paraphrasing
the eminent Justice Oliver Wendell Holmes,19 we stress that the freedom
encompasses the thought we hate, no less than the thought we agree with.
Limitations
The realities of life in a complex society, however, preclude an absolute
exercise of the freedoms of speech and of the press. Such freedoms could
not remain unfettered and unrestrained at all times and under all
circumstances.20 They are not immune to regulation by the State in the
exercise of its police power.21 While the liberty to think is absolute, the
power to express such thought in words and deeds has limitations.
In Cabansag v. Fernandez22 this Court had occasion to discuss two
theoretical test in determining the validity of restrictions to such freedoms, as
follows:
These are the "clear and present danger" rule and the "dangerous
tendency" rule. The first, as interpreted in a number of cases, means
that the evil consequence of the comment or utterance must be
"extremely serious and the degree of imminence extremely high"
before the utterance can be punished. The danger to be guarded
against is the "substantive evil" sought to be prevented. . . .23
The "dangerous tendency" rule, on the other hand, . . . may be
epitomized as follows: if the words uttered create a dangerous
tendency which the state has a right to prevent, then such words are
punishable. It is not necessary that some definite or immediate acts
of force, violence, or unlawfulness be advocated. It is sufficient that
such acts be advocated in general terms. Nor is it necessary that the
language used be reasonably calculated to incite persons to acts of
force, violence, or unlawfulness. It is sufficient if the natural tendency
and probable effect of the utterance be to bring about the substantive
evil which the legislative body seeks to prevent.24
Unquestionably, this Court adheres to the "clear and present danger" test. It
implicitly did in its earlier decisions in Primicias v. Fugoso25 and American
Bible Society v. City of Manila;26 as well as in later ones, Vera v. Arca,27
Navarro v. Villegas,28 Imbong v. Ferrer,29 Blo Umpar Adiong v. Comelec30
and, more recently, in Iglesia ni Cristo v. MTRCB.31 In setting the standard
or test for the "clear and present danger" doctrine, the Court echoed the
words of Justice Holmes: "The question in every case is whether the words
used are used in such circumstances and are of such a nature as to create a
clear and present danger that they will bring about the substantive evils that
Congress has a right to prevent. It is a question of proximity and degree."32
A limitation on the freedom of expression may be justified only by a danger of
such substantive character that the state has a right to prevent. Unlike in the
"dangerous tendency" doctrine, the danger must not only be clear but also
present. "Present" refers to the time element; the danger must not only be
probable but very likely to be inevitable.33 The evil sought to be avoided
must be so substantive as to justify a clamp over one's mouth or a restraint
of a writing instrument.34
Justification for a Restriction
Doctrinally, the Court has always ruled in favor of the freedom of expression,
and any restriction is treated an exemption. The power to exercise prior
restraint is not to be presumed; rather the presumption is against its
validity.35 And it is respondent's burden to overthrow such presumption. Any
act that restrains speech should be greeted with furrowed brows,36 so it has
been said.
To justify a restriction, the promotion of a substantial government interest
must be clearly shown.37 Thus:
A government regulation is sufficiently justified if it is within the
constitutional power of the government, if it furthers an important or
substantial government interest; if the governmental interest is
unrelated to the suppression of free expression; and if the incidental
restriction on alleged First Amendment freedoms is no greater than
is essential to the furtherance of that interest.38
Hence, even though the government's purposes are legitimate and
substantial, they cannot be pursued by means that broadly stifle fundamental
personal liberties, when the end can be more narrowly achieved.39
The freedoms of speech and of the press should all the more be upheld
when what is sought to be curtailed is the dissemination of information
meant. to add meaning to the equally vital right of suffrage.40 We cannot
support any ruling or order "the effect of which would be to nullify so vital a
constitutional right as free speech."41 When faced with borderline situations
in which the freedom of a candidate or a party to speak or the freedom of the
electorate to know is invoked against actions allegedly made to assure clean
and free elections, this Court shall lean in favor of freedom. For in the
ultimate analysis, the freedom of the citizen and the State's power to regulate
should not be 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.42
True, the government has a stake in protecting the fundamental right to vote
by providing voting places that are safe and accessible. It has the duty to
secure the secrecy of the ballot and to preserve the sanctity and the integrity
of the electoral process. However, in order to justify a restriction of the
people's freedoms of speech and of the press, the state's responsibility of
ensuring orderly voting must far outweigh them.
These freedoms have additional importance, because exit polls generate
important research data which may be used to study influencing factors and
trends in voting behavior. An absolute prohibition would thus be
unreasonably restrictive, because it effectively prevents the use of exit poll
data not only for election-day projections, but also for long-term research.43
Comelec Ban on Exit Polling
In the case at bar, the Comelec justifies its assailed Resolution as having
been issued pursuant to its constitutional mandate to ensure a free, orderly,
honest, credible and peaceful election. While admitting that "the conduct of
an exit poll and the broadcast of the results thereof [are] . . . an exercise of
press freedom," it argues that "[p]ress freedom may be curtailed if the
exercise thereof creates a clear and present danger to the community or it
has a dangerous tendency." It then contends that "an exit poll has the
tendency to sow confusion considering the randomness of selecting
interviewees, which further make[s] the exit poll highly unreliable. The
probability that the results of such exit poll may not be in harmony with the
official count made by the Comelec . . . is ever present. In other words, the
exit poll has a clear and present danger of destroying the credibility and
integrity of the electoral process."
Such arguments are purely speculative and clearly untenable. First, by the
very nature of a survey, the interviewees or participants are selected at
random, so that the results will as much as possible be representative or
reflective of the general sentiment or view of the community or group polled.
Second, the survey result is not meant to replace or be at par with the official
Comelec count. It consists merely of the opinion of the polling group as to
who the electorate in general has probably voted for, based on the limited
data gathered from polled individuals. Finally, not at stake here are the
credibility and the integrity of the elections, which are exercises that are
separate and independent from the exit polls. The holding and the reporting
of the results of exit polls cannot undermine those of the elections, since the
former is only part of the latter. If at all, the outcome of one can only be
indicative of the other.
The Comelec's concern with the possible noncommunicative effect of exit
polls disorder and confusion in the voting centers does not justify a total
ban on them. Undoubtedly, the assailed Comelec Resolution is too broad,
since its application is without qualification as to whether the polling is
disruptive or not.44 Concededly, the Omnibus Election Code prohibits
disruptive behavior around the voting centers.45 There is no showing,
however, that exit polls or the means to interview voters cause chaos in
voting centers. Neither has any evidence been presented proving that the
presence of exit poll reporters near an election precinct tends to create
disorder or confuse the voters.
Moreover, the prohibition incidentally prevents the collection of exit poll data
and their use for any purpose. The valuable information and ideas that could
be derived from them, based on the voters' answer to the survey questions
will forever remain unknown and unexplored. Unless the ban is restrained,
candidates, researchers, social scientists and the electorate in general would
be deprived of studies on the impact of current events and of election-day
and other factors on voters' choices.1wphi1.nt
In Daily Herald Co. v. Munro,46 the US Supreme Court held that a statute,
one of the purposes of which was to prevent the broadcasting of early
returns, was unconstitutional because such purpose was impermissible, and
the statute was neither narrowly tailored to advance a state interest nor the
least restrictive alternative. Furthermore, the general interest of the State in
insulating voters from outside influences is insufficient to justify speech
regulation. Just as curtailing election-day broadcasts and newspaper
editorials for the reason that they might indirectly affect the voters' choices is
impermissible, so is impermissible, so is regulating speech via an exit poll
restriction.47
The absolute ban imposed by the Comelec cannot, therefore, be justified. It
does not leave open any alternative channel of communication to gather the
type of information obtained through exit polling. On the other hand, there are
other valid and reasonable ways and means to achieve the Comelec end of
avoiding or minimizing disorder and confusion that may be brought about by
exit surveys.
For instance, a specific limited area for conducting exit polls may be
designated. Only professional survey groups may be allowed to conduct the
same. Pollsters may be kept at a reasonable distance from the voting center.
They may be required to explain to voters that the latter may refuse
interviewed, and that the interview is not part of the official balloting process.
The pollsters may further be required to wear distinctive clothing that would
show they are not election officials.48 Additionally, they may be required to
undertake an information campaign on the nature of the exercise and the
results to be obtained therefrom. These measures, together with a general
prohibition of disruptive behavior, could ensure a clean, safe and orderly
election.
accordance with the instructions of a third party. This result cannot, however,
be achieved merely through the voters' verbal and confidential disclosure to
a pollster of whom they have voted for.
In exit polls, the contents of the official ballot are not actually exposed.
Furthermore, the revelation of whom an elector has voted for is not
compulsory, but voluntary. Voters may also choose not to reveal their
identities. Indeed, narrowly tailored countermeasures may be prescribed by
the Comelec, so as to minimize or suppress incidental problems in the
conduct of exit polls, without transgressing the fundamental rights of our
people.

For its part, petitioner ABS-CBN explains its survey methodology as follows: WHEREFORE, the Petition is GRANTED, and the Temporary Restraining
(1) communities are randomly selected in each province; (2) residences to be Order issued by the Court on May 9, 1998 is made PERMANENT. Assailed
polled in such communities are also chosen at random; (3) only individuals Minute Resolution No. 98-1419 issued by the Comelec en banc on April 21,
who have already voted, as shown by the indelible ink on their fingers, are 1998 is hereby NULLIFIED and SET ASIDE. No costs.
interviewed; (4) the interviewers use no cameras of any sort; (5) the poll
results are released to the public only on the day after the elections.49 These
SO ORDERED.
precautions, together with the possible measures earlier stated, may be
undertaken to abate the Comelec's fear, without consequently and
unjustifiably stilling the people's voice.

With the foregoing premises, we conclude that the interest of the state in
reducing disruption is outweighed by the drastic abridgment of the
constitutionally guaranteed rights of the media and the electorate. Quite the
contrary, instead of disrupting elections, exit polls properly conducted and
publicized can be vital tools for the holding of honest, orderly, peaceful
and credible elections; and for the elimination of election-fixing, fraud and
other electoral ills.

Violation of Ballot Secrecy

The contention of public respondent that exit polls indirectly transgress the
sanctity and the secrecy of the ballot is off-tangent to the real issue.
Petitioner does not seek access to the ballots cast by the voters. The ballot
system of voting is not at issue here.

The reason behind the principle of ballot secrecy is to avoid vote buying
through voter identification. Thus, voters are prohibited from exhibiting the
contents of their official ballots to other persons, from making copies thereof,
or from putting distinguishing marks thereon so as to be identified. Also
proscribed is finding out the contents of the ballots cast by particular voters
or disclosing those of disabled or illiterate voters who have been assisted.
Clearly, what is forbidden is the association of voters with their respective
votes, for the purpose of assuring that the votes have been cast in
G.R. No. 140335 December 13, 2000
THELMA P. GAMINDE, petitioner,
vs.
COMMISSION ON AUDIT and/or Hon. CELSO D. GANGAN, Hon. RAUL
C. FLORES and EMMANUEL M. DALMAN, respondents.
DECISION
PARDO, J.:
The Case
The case is a special civil action of certiorari seeking to annul and set aside
two "decisions" of the Commission on Audit ruling that petitioners term of
office as Commissioner, Civil Service Commission, to which she was
appointed on June 11, 1993, expired on February 02, 1999, as set forth in
her appointment paper.
The Facts
On June 11, 1993, the President of the Philippines appointed petitioner
Thelma P. Gaminde, ad interim, Commissioner, Civil Service Commission.
She assumed office on June 22, 1993, after taking an oath of office. On
September 07, 1993, the Commission on Appointment, Congress of the
Philippines confirmed the appointment. We quote verbatim her appointment
paper:
"11 June 1993
"Madam:
"Pursuant to the provisions of existing laws, you are hereby appointed, ad
interim, COMMISSIONER, CIVIL SERVICE COMMISSION, for a term
expiring February 2, 1999.
"By virtue hereof, you may qualify and enter upon the performance of the
duties of the office, furnishing this Office and the Civil Service Commission
with copies of your oath of office."1
However, on February 24, 1998, petitioner sought clarification from the Office
of the President as to the expiry date of her term of office. In reply to her
request, the Chief Presidential Legal Counsel, in a letter dated April 07,
19982 opined that petitioners term of office would expire on February 02,
2000, not on February 02, 1999.
Relying on said advisory opinion, petitioner remained in office after February
02, 1999. On February 04, 1999, Chairman Corazon Alma G. de Leon, wrote
the Commission on Audit requesting opinion on whether or not
Commissioner Thelma P. Gaminde and her co-terminous staff may be paid
their salaries notwithstanding the expiration of their appointments on
February 02, 1999.
On February 18, 1999, the General Counsel, Commission on Audit, issued
an opinion that "the term of Commissioner Gaminde has expired on February
02, 1999 as stated in her appointment conformably with the constitutional
intent."3
Consequently, on March 24, 1999, CSC Resident Auditor Flovitas U. Felipe
issued notice of disallowance No. 99-002-101 (99), disallowing in audit the
salaries and emoluments pertaining to petitioner and her co-terminous staff,
effective February 02, 1999.4
On April 5, 1999, petitioner appealed the disallowance to the Commission on
Audit en banc. On June 15, 1999, the Commission on Audit issued Decision
No. 99-090 dismissing petitioners appeal. The Commission on Audit affirmed
the propriety of the disallowance, holding that the issue of petitioners term of
office may be properly addressed by mere reference to her appointment
paper which set the expiration date on February 02, 1999, and that the
Commission is bereft of power to recognize an extension of her term, not
even with the implied acquiescence of the Office of the President.5
In time, petitioner moved for reconsideration; however, on August 17, 1999,
the Commission on Audit denied the motion in Decision No. 99-129.6
Hence, this petition.7
The Issue
The basic issue raised is whether the term of office of Atty. Thelma P.
Gaminde, as Commissioner, Civil Service Commission, to which she was
appointed on June 11, 1993, expired on February 02, 1999, as stated in the
appointment paper, or on February 02, 2000, as claimed by her.
The Courts Ruling
The term of office of the Chairman and members of the Civil Service
Commission is prescribed in the 1987 Constitution, as follows:
"Section 1 (2). The Chairman and the Commissioners shall be appointed by
the President with the consent of the Commission on Appointments for a
term of seven years without reappointment. Of those first appointed, the
Chairman shall hold office for seven years, a Commissioner for five years,
and another Commissioner for three years, without reappointment.
Appointment to any vacancy shall be only for the unexpired term of the
predecessor. In no case shall any Member be appointed or designated in a
temporary or acting capacity."8
The 1973 Constitution introduced the first system of a regular rotation or
cycle in the membership of the Civil Service Commission. The provision on
the 1973 Constitution reads:
"x x x The Chairman and the Commissioners shall be appointed by the Prime
Minister for a term of seven years without reappointment. Of the
Commissioners first appointed, one shall hold office for seven years, another
for five years, and the third for three years. Appointment to any vacancy shall
be only for the unexpired portion of the term of the predecessor."9
Actually, this was a copy of the Constitutional prescription in the amended
1935 Constitution of a rotational system for the appointment of the Chairman
and members of the Commission on Elections. The Constitutional
amendment creating an independent Commission on Elections provides as
follows:
"Section 1. There shall be an independent Commission on Elections
composed of a Chairman and two other Members to be appointed by the
President with the consent of the Commission on Appointments, who shall
hold office for a term of nine years and may not be reappointed. Of the
Members of the Commission first appointed, one shall hold office for nine
years, another for six years, and the third for three years. The Chairman and
the other Members of the Commission on Elections may be removed from
office only by impeachment in the manner provided in this Constitution."10
In Republic vs. Imperial,11 we said that "the operation of the rotational plan
requires two conditions, both indispensable to its workability: (1) that the
terms of the first three (3) Commissioners should start on a common date,
and, (2) that any vacancy due to death, resignation or disability before the
expiration of the term should only be filled only for the unexpired balance of
the term."12
Consequently, the terms of the first Chairmen and Commissioners of the
Constitutional Commissions under the 1987 Constitution must start on a
common date, irrespective of the variations in the dates of appointments and
qualifications of the appointees, in order that the expiration of the first terms
of seven, five and three years should lead to the regular recurrence of the
two-year interval between the expiration of the terms.13
Applying the foregoing conditions to the case at bar, we rule that the
appropriate starting point of the terms of office of the first appointees to the
Constitutional Commissions under the 1987 Constitution must be on
February 02, 1987, the date of the adoption of the 1987 Constitution. In case
of a belated appointment or qualification, the interval between the start of the
term and the actual qualification of the appointee must be counted against
the latter.14
In the law of public officers, there is a settled distinction between "term" and
"tenure." "[T]he term of an office must be distinguished from the tenure of the
incumbent. The term means the time during which the officer may claim to
hold office as of right, and fixes the interval after which the several
incumbents shall succeed one another. The tenure represents the term
during which the incumbent actually holds the office. The term of office is not
affected by the hold-over. The tenure may be shorter than the term for
reasons within or beyond the power of the incumbent."15
In concluding that February 02, 1987 is the proper starting point of the terms
of office of the first appointees to the Constitutional Commissions of a
staggered 7-5-3 year terms, we considered the plain language of Article IX
(B), Section 1 (2), Article IX (C), Section 1 (2) and Article IX (D), Section 1 (2)
of the 1987 Constitution that uniformly prescribed a seven-year term of office
for Members of the Constitutional Commissions, without re-appointment, and
for the first appointees terms of seven, five and three years, without re-
appointment. In no case shall any Member be appointed or designated in a
temporary or acting capacity. There is no need to expressly state the
beginning of the term of office as this is understood to coincide with the
effectivity of the Constitution upon its ratification (on February 02, 1987).
On the other hand, Article XVIII, Transitory Provisions, 1987 Constitution
provides:
"SEC. 15. The incumbent Members of the Civil Service Commission, the
Commission on Elections, and the Commission on Audit shall continue in
office for one year after the ratification of this Constitution, unless they are
sooner removed for cause or become incapacitated to discharge the duties
of their office or appointed to a new term thereunder. In no case shall any
Member serve longer than seven years including service before the
ratification of this Constitution."16
What the above quoted Transitory Provisions contemplate is "tenure" not
"term" of the incumbent Chairmen and Members of the Civil Service
Commission, the Commission on Elections and the Commission on Audit,
who "shall continue in office for one year after the ratification of this
Constitution, unless they are sooner removed for cause or become
incapacitated to discharge the duties of their office or appointed to a new
term thereunder." The term "unless" imports an exception to the general
rule.17 Clearly, the transitory provisions mean that the incumbent members
of the Constitutional Commissions shall continue in office for one year after
the ratification of this Constitution under their existing appointments at the
discretion of the appointing power, who may cut short their tenure by: (1)
their removal from office for cause; (2) their becoming incapacitated to
discharge the duties of their office, or (3) their appointment to a new term
thereunder, all of which events may occur before the end of the one year
period after the effectivity of the Constitution.
However, the transitory provisions do not affect the term of office fixed in
Article IX, providing for a seven-five-three year rotational interval for the first
appointees under this Constitution.
At the time of the adoption of the 1987 Constitution, the incumbent Chairman
and members of the Civil Service Commission were the following: (1)
Chairperson Celerina G. Gotladera. She was initially appointed as OIC
Chairman on March 19, 1986, and appointed chairman on December 24,
1986, which she assumed on March 13, 1987. (2) Atty. Cirilo G. Montejo. On
June 25, 1986, President Corazon C. Aquino appointed him Commissioner,
without any term. He assumed office on July 9, 1986, and served until March
31, 1987, when he filed a certificate of candidacy for the position of
Congressman, 2nd District, Leyte, thereby vacating his position as
Commissioner. His tenure was automatically cut-off by the filing of his
certificate of candidacy. (3) Atty. Mario D. Yango. On January 22, 1985,
President Ferdinand E. Marcos appointed him Commissioner for a term
expiring January 25, 1990. He served until February 2, 1988, when his term
ended in virtue of the transitory provisions referred to. On May 30, 1988,
President Aquino re-appointed him to a new three-year term and served until
May 31, 1991, exceeding his lawful term, but not exceeding the maximum of
seven years, including service before the ratification of the 1987 Constitution.
Under this factual milieu, it was only Commissioner Yango who was
extended a new term under the 1987 Constitution. The period consumed
between the start of the term on February 02, 1987, and his actual
assumption on May 30, 1988, due to his belated appointment, must be
counted against him.
Given the foregoing common starting point, we compute the terms of the first
appointees and their successors to the Civil Service Commission under the
1987 Constitution by their respective lines, as follows:
First line : Chairman seven-year term. February 02, 1987 to February 01,
1994. On January 30, 1988, the President nominated Ms. Patricia A. Sto.
Tomas Chairman, Civil Service Commission. On March 02, 1988, the
Commission on Appointments confirmed the nomination. She assumed office
on March 04, 1988. Her term ended on February 02, 1994. She served as de
facto Chairman until March 04, 1995. On March 05, 1995, the President
appointed then Social Welfare Secretary Corazon Alma G. de Leon,
Chairman, Civil Service Commission, to a regular seven-year term. This term
must be deemed to start on February 02, 1994, immediately succeeding her
predecessor, whose term started on the common date of the terms of office
of the first appointees under the 1987 Constitution. She assumed office on
March 22, 1995, for a term expiring February 02, 2001.
This is shown in her appointment paper, quoted verbatim as follows:
"March 5, 1995
"Madam:
"Pursuant to the provisions of Article VII, Section 16, paragraph 2, of the
Constitution, you are hereby appointed, ad interim, CHAIRMAN, CIVIL
SERVICE COMMISSION, for a term expiring February 2, 2001.
"By virtue hereof, you may qualify and enter upon the performance of the
duties of the office, furnishing this Office and the Civil Service Commission
with copies of your oath of office.
"(Sgd.) FIDEL V. RAMOS"
Second line : Commissioner Five-year term. February 02, 1987 to February
02, 1992. On January 30, 1988, the President nominated Atty. Samilo N.
Barlongay Commissioner, Civil Service Commission. On February 17, 1988,
the Commission on Appointments, Congress of the Philippines, confirmed
the nomination. He assumed office on March 04, 1988. His term ended on
February 02, 1992. He served as de facto Commissioner until March 04,
1993.
On June 11, 1993, the President appointed Atty. Thelma P. Gaminde
Commissioner, Civil Service Commission, for a term expiring February 02,
1999.18 This terminal date is specified in her appointment paper. On
September 07, 1993, the Commission on Appointments confirmed the
appointment. She accepted the appointment and assumed office on June 22, (7-year original)
1993. She is bound by the term of the appointment she accepted, expiring
February 02, 1999. In this connection, the letter dated April 07, 1998, of Sto. Tomas 1st appointee Feb. 02, 1987 to Mar. 04, 1988 to
Deputy Executive Secretary Renato C. Corona19 clarifying that her term
would expire on February 02, 2000, was in error. What was submitted to the
Feb. 02, 1994 March 08, 1995
Commission on Appointments was a nomination for a term expiring on
February 02, 1999. Thus, the term of her successor20 must be deemed to
start on February 02, 1999, and expire on February 02, 2006. De Leon 2nd appointee Feb. 02, 1994 to March 22, 1995 to

Third line : Commissioner Three-year term. February 02, 1987 to February (incumbent) Feb. 02, 2001 Feb. 02, 2001
02, 1990. Atty. Mario D. Yango was incumbent commissioner at the time of
the adoption of the 1987 Constitution. His extended tenure ended on _______ - 3rd appointee Feb. 02, 2001 to
February 02, 1988. In May, 1988, President Corazon C. Aquino appointed
him Commissioner, Civil Service Commission to a new three-year term Feb. 02, 2008
thereunder. He assumed office on May 30, 1988. His term ended on
February 02, 1990, but served as de facto Commissioner until May 31, 1991. 2nd Member Term Tenure
On November 26, 1991, the President nominated Atty. Ramon P. Ereeta as
Commissioner, Civil Service Commission. On December 04, 1991, the
(5-year original)
Commission on Appointments confirmed the nomination. He assumed office
on December 12, 1991, for a term expiring February 02, 1997.21
Barlongay 1st appointee Feb. 02, 1987 to March 04, 1988 to
Commendably, he voluntarily retired on February 02, 1997. On February 03,
1997, President Fidel V. Ramos appointed Atty. Jose F. Erestain, Jr. Feb. 02, 1992 March 04, 1993
Commissioner, Civil Service Commission, for a term expiring February 02,
2004. He assumed office on February 11, 1997. Gaminde 2nd appointee Feb. 02, 1992 to June 11, 1993 to

Thus, we see the regular interval of vacancy every two (2) years, namely, Feb. 02, 1999 Feb. 02, 2000
February 02, 1994, for the first Chairman,22 February 02, 1992, for the first
five-year term Commissioner,23 and February 02, 1990, for the first three- Valmores 3rd appointee Feb. 02, 1999 to Sept. 08, 2000 to
year term Commissioner.24 Their successors must also maintain the two
year interval, namely: February 02, 2001, for Chairman;25 February 02, (incumbent) Feb. 02, 2006 Feb. 02, 2006
1999, for Commissioner Thelma P. Gaminde, and February 02, 1997, for
Commissioner Ramon P. Ereeta, Jr.
3rd Member Term Tenure
The third batch of appointees would then be having terms of office as follows:
(3-year original)
First line : Chairman, February 02, 2001 to February 02, 2008; Second line:
Commissioner, February 02, 1999 to February 02, 2006;26 and, Third line: Yango - 1st appointee Feb. 02, 1987 to May 30, 1988 to
Commissioner, February 02, 1997 to February 02, 2004,27 thereby
consistently maintaining the two-year interval. Feb. 02, 1990 May 31, 1991

The line of succession, terms of office and tenure of the Chairman and Ereeta 2nd appointee Feb. 02, 1990 to Dec. 12, 1991 to
members of the Civil Service Commission may be outlined as follows:28
Feb. 02, 1997 Feb. 02, 1997
Chairman Term Tenure
Erestain, Jr. 3rd appointee Feb. 02, 1997 to Feb. 11, 1997 to

(incumbent) Feb. 02, 2004 Feb. 02, 2004

The Fallo

WHEREFORE, we adjudge that the term of office of Ms. Thelma P. Gaminde

as Commissioner, Civil Service Commission, under an appointment
extended to her by President Fidel V. Ramos on June 11, 1993, expired on
February 02, 1999. However, she served as de facto officer in good faith until
February 02, 2000, and thus entitled to receive her salary and other
emoluments for actual service rendered. Consequently, the Commission on
Audit erred in disallowing in audit such salary and other emoluments,
including that of her co-terminous staff.

ACCORDINGLY, we REVERSE the decisions of the Commission on Audit

insofar as they disallow the salaries and emoluments of Commissioner
Thelma P. Gaminde and her coterminous staff during her tenure as de facto
officer from February 02, 1999, until February 02, 2000.

This decision shall be effective immediately.

No costs.

SO ORDERED.
G.R. No. 129133 November 25, 1998
ECONOMIC INTELLIGENCE AND INVESTIGATION BUREAU, petitioner,
vs.
HON. COURT OF APPEALS and CIVIL SERVICE COMMISSION,
respondents.
PURISIMA, J.:
Before the Court is a Petition for Review on Certiorari under Rule 45 of the
Revised Rules of Court to review and set aside the 7 November 1996
Decision1 and 18 March 1997 Resolution 2 of the Court of Appeals 3 in CA-
G.R. SP No. 37720.
As culled by the Court of Appeals, the antecedent facts that matter are, as
follows:
In a letter dated October 13, 1988, respondent CSC through
Chairman Patricia A. Sto. Tomas required the Secretary of
Finance to submit to the CSC all appointments in the
Economic Intelligence and Investigation Bureau (EIIB).
Instead of complying with the said letter, petitioner Jose T.
Almonte, as Commissioner of EIIB, wrote a letter dated
March 29, 1989, to respondent CSC, requesting for
confirmation of EIIB's exemption from CSC rules and
regulations with respect to appointments and other
personnel actions invoking as basis for such exemption PD
No. 1458 and LOI No. 71.
On June 21, 1989, respondent CSC issued the subject
Resolution No. 89-400, denying petitioner Almonte's request
for exemption of the EIIB from the coverage of the civil
service rules and regulations and reiterating its order that
petitioner EIIB submit to the CSC all appointments to career
or non-career positions in the Bureau.
Not having received any compliance from petitioners,
respondent CSC, in its Order of December 7, 1990, directed
petitioner Jose T. Almonte to immediately implement
Resolution No. 89-400, with a warning that any EIIB official
who shall fail or refuse to comply with the said order shall be
held liable for indirect contempt.
On June 4, 1991, respondent CSC issued another order,
requiring petitioner Almonte to Show cause why he should
not be cited for indirect contempt for his continued refusal to
implement or comply with CSC Resolution No. 89-400 and
the Order of December 7, 1990.
In a letter, dated June 13, 1991, petitioner Almonte
explained to the respondent CSC the reasons of the EIIB for
its inability to comply with Resolution No. 89-400. He
invoked PD No. 1458 and LOI No. 71 exempting the EIIB
from the coverage of civil service rules and regulations on
appointments and other personnel actions. Petitioner
Almonte prayed that Resolution No. 89-400, the Order of
June 4, 1991, and the subsequent orders be set aside.
On August 22, 1991, respondent CSC issued an order,
finding petitioner Almonte guilty of indirect contempt of the
Commission, the dispositive portion of which reads as
follows:
WHEREFORE, foregoing premises considered, the
commission hereby resolves to find and adjudge Jose T.
Almonte, Commissioner, EIIB, guilty of indirect contempt of
the Commission pursuant to Section 12 (11), Book V,
Subtitle A of Executive order No. 292 and memorandum
Circular No. 42, series of 1990. He is thus meted the penalty
of fine P1,000.00 each day from the date of receipt of this
Order dated December 7, 1990. Accordingly, the Cashier of
the EIIB is hereby directed to deduct from the salary of
Commissioner Almonte the amount of P1,000.00 each day
of his failure to comply with the above CSC Order. Let
copies of this Order be furnished the Resident Auditor of the
EIIB as well as the COA, the Secretary of the Department of
Finance and the CSFO-DND, for their information and
guidance.
SO ORDERED.
Dissatisfied therewith, petitioner went to the Court of Appeals on a Petition
for Certiorari. However, on November 7, 1996, the Court of Appeals
dismissed the petition; ratiocinating thus:
The 1987 Constitution is so clear and categorical in its
mandate that:
Art. IX (B), Section 2 (1). The civil service embraces all
branches, subdivisions, instrumentalities, and agencies of
the Government, including government-owned or controlled
corporations with original charters.
The civil service contemplated in the constitutional provision
is very comprehensive in its scope, that it includes every
category of officer or employee of the government, its
branches, subdivisions and instrumentalities, and even
employees of private corporations, if such corporations are
controlled or owned by the government with original
charters.
In the light of his constitutional mandate, petitioner EIIB,
being a government agency, is necessarily embraced by the
civil service. The fact that positions in the EIIB are primarily
confidential did not place it outside the domain of civil
servants, since "it is conceded that one holding in the
Government a primarily confidential position is in the Civil
Service" (Ingles v. Mutuc, 26 SCRA 171). That fact merely
exempts confidential positions in the EIIB from the
constitutional rule that "appointments in the civil service shall
be made only according to merit and fitness to be
determined, as far as practicable . . . by competitive
examination [Art. IX (B), Sec. 2 (2) ]". And it is in this sense
that the provisions of PD 1458, particularly Section 5 and
LOI 71 relied upon by the petitioners should be interpreted.
Neither does petitioners' contention that "if EIIB's positions
and personnel actions will be opened, one may know its
operations, movements, targets, strategies, and tactics and
the whole of its being" deserve merit, as the same is pure
speculation and conjecture. EIIB officials and personnel
remain civil servants and as correctly argued by the Solicitor
General, "EIIB officials occupying confidential positions,
remain accountable to the people and are subject to the
same state policies on morale, efficiency, integrity,
responsiveness and courtesy in the civil service". Thus We
hold that the personnel in the EEIB are covered by the Civil
Service.
xxx xxx xxx
WHEREFORE, the Court upholds Resolution No. 89-400 but
declares CSC Orders of December 7, 1990, June 4, 1991,
and of August 22, 1991, as NULL AND VOID, the Civil
Service Commission not having jurisdiction to cite and
punish Commissioner Jose T. Almonte of the Economic
Intelligence and Investigation Bureau for indirect contempt of
the Commission.
With the denial of its motion for reconsideration by Resolution, dated March
18, 1997, of the Court of Appeals, petitioner found its way to this Court via
the present Petition; contending, that:
IN HOLDING THAT PETITIONER IS COVERED BY CIVIL
SERVICE, RESPONDENT COURT VIOLATED P.D. No.
1458 AND LOI No. 71 WHICH EXPRESSLY EXEMPT IT
FROM CIVIL SERVICE COVERAGE.
The pivotal issue here is: whether or not the petitioner, Economic Intelligence
Investigation Bureau (EIIB), is embraced by the Civil Service.
Sec. 2, subparagraph (1), Article IX, paragraph (B) of the 1987 Constitution
provides:
The civil service embraces all branches, subdivisions,
instrumentalities, agencies of the Government, including
government-owned or controlled corporations with original
charter.
Succinct and clear is the provision of the Constitution in point that all
government agencies, without exception, are covered by the civil service.
Petitioner EIIB is a government agency under the Department of Finance as
provided by Section 17, Chapter 4, Title II, Book IV of the 1987
Administrative Code.4 Therefore, EIIB is within the ambit of the Civil Service
Law.
The civil service within the contemplation of the aforecited constitutional
provision is comprehensive in scope. It embraces all officers and employees
of the government, its branches, subdivisions and instrumentalities. Even
employees of corporations owned or controlled by the government, with
original charters, are covered thereby.
Petitioner contends that EIIB is expressly exempted from civil service
coverage, under Section 5 of P.D. No. 1458, which provides:
 Application of WAPCO and Civil Service Rules Personnel
of the FDIIB shall be exempted from WAPCO and Civil
Service Rules and Regulations relative to appointments and
other personnel actions: Provided, That they shall be entitled
to the benefits and privileges accorded to government
employees . . .
On the other hand, LOI No. 71, the Implementing Rules of P.D. No. 1458,
reads:
10. It is further directed that personnel of the BII shall be
exempt from OCPC and Civil Service Rules and Regulations
relative to appointments and other personnel actions;
Provided, That they shall be entitled to the benefits accorded
to government employees . . .
Petitioner's submission is barren of merit.
The aforecited provisions of law provide for the exemption of petitioner EIIB
only from Civil Service Rules and Regulations relative to appointments and
other personnel actions, but not from the Civil Service Law or Civil Service
Rules and Regulations relative to any other matter.
Neither can we uphold petitioner's reliance on Section 26 of Executive Order
No. 127,5 Petitioner, in gist, asserts exemption from Civil Service coverage
since the Bureau forms part of the intelligence community created under the
said executive Order.
There is merit in the disquisition by the Court of Appeals that membership of
petitioner EIIB in the intelligence community is of no moment, insofar as
application of the Civil Service Law is concerned. The National Bureau of
Investigation (NBI), also a member of the intelligence community which
performs functions similar to those of EIIB, e.g., intelligence gathering,
investigation, research, etc., submits to the Civil Service Commission the
appointments of all NBI personnel, whether belonging to the career or non-
career service. Besides, in Ingles vs. Mutuc, 26 SCRA 171, this Court ruled
that " . . . one holding in the Government a primarily confidential position is 'in
the Civil Service'."
Equally untenable is petitioner's contention that, because the personnel of
EIIB are occupying jobs highly confidential in nature, the EIIB should not be
required to submit the names of its personnel to the Civil Service
Commission.
In Almonte vs. Vasquez, 244 SCRA 286 [1995], EIIB was ordered by the
Ombudsman to produce documents relating to personnel services and salary
vouchers of EIIB employees. The Bureau pleaded that such documents are
classified, and knowledge of EIIB's documents relative to its Personnel
Services Funds and its plantilla will inevitably lead to knowledge of its
operations, movements, targets and strategies, which could destroy the
Bureau itself. The Court ruled that the required documents can be examined
by the Ombudsman; explaining that:
. . . [T]here is no claim that military or diplomatic secrets will
be disclosed by the production of records pertaining to the
personnel of the EIIB. Indeed, EIIB's function is the gathering
and evaluation of intelligence reports and information
regarding "illegal activities affecting the national economy,
such as, but not limited to, economic sabotage, smuggling,
tax evasion, dollar salting." Consequently, while in cases
which involve state secrets it may be sufficient to determine
from the circumstance of the case that there is reasonable
danger that compulsion of the evidence will expose military
matters without compelling production, no similar excuse can
be made for a privilege resting on other considerations.
Nor has our attention been called to any law or regulation
which considers records of the EIIB as classified information
...
All things viewed in proper perspective, we are of the opinion, and so hold,
that the Court of Appeals erred not in holding that:
. . . [R]espondent CSC's act of requiring petitioner EIIB to
submit to it all appointments in the Bureau, for appropriate
action, is part of its administrative function as the central
personnel agency of the government.
WHEREFORE, the petition is hereby DENIED; and the Decision of the Court
of Appeals in CA-GR SP No. 37720 AFFIRMED, without any pronouncement
as to costs.
SO ORDERED.
G.R. No. 141707 May 7, 2002
CAYO G. GAMOGAMO, petitioner,
vs.
PNOC SHIPPING AND TRANSPORT CORP., respondent.
DAVIDE, JR., C.J.:
The pivotal issue raised in the petition in this case is whether, for the purpose
of computing an employees retirement pay, prior service rendered in a
government agency can be tacked in and added to the creditable service
later acquired in a government-owned and controlled corporation without
original charter.
On 23 January 1963, Petitioner Cayo F. Gamogamo was first employed with
the Department of Health (DOH) as Dental Aide. On 22 February 1967, he
was promoted to the position of Dentist 1. He remained employed at the
DOH for fourteen years until he resigned on 2 November 1977.1
On 9 November 1977, petitioner was hired as company dentist by Luzon
Stevedoring Corporation (LUSTEVECO), a private domestic corporation. 2
Subsequently, respondent PNOC Shipping and Transport Corporation
(hereafter Respondent) acquired and took over the shipping business of
LUSTEVECO, and on 1 August 1979, petitioner was among those who opted
to be absorbed by the Respondent.3 Thus, he continued to work as company
dentist. In a letter dated 1 August 1979, Respondent assumed without
interruption petitioners service credits with LUSTEVECO,4 but it did not
make reference to nor assumed petitioners service credits with the DOH.
On 10 June 1993, then President Fidel V. Ramos issued a memorandum 5
approving the privatization of PNOC subsidiaries, including Respondent,
pursuant to the provisions of Section III(B) of the Guidelines and Regulations
to implement Executive Order No. 37.6 Accordingly, Respondent
implemented a Manpower Reduction Program to govern employees whose
respective positions have been classified as redundant as a result of
Respondents decrease in operations and the downsizing of the organization
due to lay-up and sale of its vessels pursuant to its direction towards
privatization.7 Under this program, retrenched employees shall receive a two-
month pay for every year of service.
Sometime in 1995, petitioner requested to be included in the next
retrenchment schedule. However, his request was turned down for the
following reasons:8
1. As a company dentist he was holding a permanent position;
2. He was already due for mandatory retirement in April 1995 under
his retirement plan (first day of the month following his 60th birthday
which was on 7 March 1995).
Eventually, petitioner retired after serving the Respondent and LUSTEVECO
for 17 years and 4 months upon reaching his 60th birthday, on 1 April 1995.
He received a retirement pay of P512,524.15,9 which is equivalent to one
month pay for every year of service and other benefits.
On 30 August 1995, Admiral Carlito Y. Cunanan, Repondents president,
died of Dengue Fever and was forthwith replaced by Dr. Nemesio E.
Prudente who assumed office in December 1995. The new president
implemented significant cost-saving measures. In 1996, after petitioners
retirement, the cases of Dr. Rogelio T. Buena (company doctor) and Mrs. Luz
C. Reyes (telephone operator), who were holding permanent/non-redundant
positions but were willing to be retrenched under the program were brought
to the attention of the new president who ordered that a study on the cost-
effect of the retrenchment of these employees be conducted. After a
thorough study, Respondents Board of Directors recommended the approval
of the retrenchment. These two employees were retrenched and paid a 2-
month separation pay for every year of service under Respondents
Manpower Reduction Program.10
In view of the action taken by Respondent in the retrenchment of Dr. Buena
and Mrs. Reyes, petitioner filed a complaint at the National Labor Relations
Commission (NLRC) for the full payment of his retirement benefits. Petitioner
argued that his service with the DOH should have been included in the
computation of his years of service. Hence, with an accumulated service of
32 years he should have been paid a two-month pay for every year of service
per the retirement plan and thus should have received at least
P1,833,920.00.
The Labor Arbiter dismissed petitioners complaint.11 On appeal, however,
the NLRC reversed the decision of the Labor Arbiter. In its decision12 of 28
November 1997, the NLRC ruled:
WHEREFORE, the Decision of the Labor Arbiter dated May 30, 1997
is hereby SET ASIDE and another judgment is hereby rendered to
wit:
(1) the government service of the complainant with the
Department of Health numbering fourteen (14) years is
hereby considered creditable service for purposes of
computing his retirement benefits;
 (2) crediting his fourteen (14) years service with the
Department of Health, together with his nearly eighteen (18)
years of service with the respondent, complainant therefore
has almost thirty-two (32) years service upon which his
retirement benefits would be computed or based on;
(3) complainant is entitled to the full payment of his
retirement benefits pursuant to the respondents Retirement
Law or the retrenchment program (Manpower Reduction
Program). In any case, he is entitled to two (2) months
retirement/separation pay for every year of service.
(4) all other claims are DISMISSED.
SO ORDERED.
Respondent filed a motion for reconsideration but it was denied.13
Unsatisfied with the reversal, Respondent filed with the Court of Appeals a
special civil action for certiorari which was docketed as CA-G.R. SP No.
51152. In its decision14 of 8 November 1999, the Court of Appeals set aside
the NLRC judgment and decreed:
WHEREFORE, the petition is hereby GIVEN DUE COURSE and the
writ prayed for GRANTED. Consequently, the Decision and
Resolution of the National Labor Relations Commission (Second
Division) dated November 28, 1997 and May 15, 1998, respectively,
are hereby SET ASIDE AND NULLIFIED, without prejudice to private
respondent Cayo F. Gamo-gamos recovery of whatever benefits he
may have been entitled to receive by reason of his fourteen (14)
years of service with the Department of Health.
No pronouncement as to costs.
His motion for reconsideration having been denied by the Court of Appeals,15
petitioner filed with us the petition in the case at bar. Petitioner contends that:
(1) his years of service with the DOH must be considered as creditable
service for the purpose of computing his retirement pay; and (2) he was
discriminated against in the application of the Manpower Reduction
Program.16
Petitioner maintains that his government service with the DOH should be
recognized and tacked in to his length of service with Respondent because
LUSTEVECO, which was later bought by Respondent, and Respondent
itself, were government-owned and controlled corporations and were,
therefore, under the Civil Service Law. Prior to the separation of Respondent
from the Civil Service by virtue of the 1987 Constitution, petitioners length of
service was considered continuous. The effectivity of the 1987 Constitution
did not interrupt his continuity of service. He claims that he is supported by
the opinion of 18 May 1993 of the Civil Service Commission in the case of
Petron Corporation, where the Commission allegedly opined:
that all government services rendered by employees of the Petron
prior to 1987 Constitution are considered creditable services for
purposes of computation of retirement benefits. This must
necessarily be so considering that in the event that Petron would
consider only those services of an employee with Petron when it was
excluded from the civil service coverage (that is after the 1987
Constitution), it would render nugatory his government agencies prior
to his transfer to Petron. Hence, Petron or any other PNOC
subsidiary has to include in its retirement scheme or in its Collective
Bargaining Agreement a provision of the inclusion of the other
government services of its employees rendered outside Petron,
otherwise, it would be prejudicial to the interest of the retireable
employee concerned.
Petitioner asserts that with the tacking in of his 14 years of service with the
DOH to his 17 years and 4 months service with LUSTEVECO and
Respondent, he had 31 years and 4 months creditable service as basis for
the computation of his retirement benefits. Thus, pursuant to Respondents
Manpower Reduction Program, he should have been paid two months pay
for every year of his 31 years of service.
Petitioner likewise asserts that the principle of tacking is anchored on
Republic Act No. 7699.17
Petitioner concludes that there was discrimination when his application for
coverage under the Manpower Reduction Program was disapproved. His
application was denied because he was holding a permanent position and
that he was due for retirement. However, Respondent granted the application
of Dr. Rogelio Buena, who was likewise holding a permanent position and
was also about to retire. Petitioner was only given one-month pay for every
year of service under the regular retirement plan while Dr. Buena was given
a 2-month pay for every year of service under the Manpower Reduction
Program.
In its Comment to the petition, Respondent maintains that although it is a
government-owned and controlled corporation, it has no original charter.
Hence, it is not within the coverage of the Civil Service Law. It cites the
decision in PNOC-EDC v. Leogardo,18 wherein we held that only
corporations created by special charters are subject to the provisions of the
Civil Service Law. Those without original charters are covered by the Labor
Code. Respondent also asserts that R.A. No. 7699 is not applicable. Under
this law an employee who has worked in both the private and public sectors
and has been covered by both the Government Service Insurance System
(GSIS) and the Social Security System (SSS), shall have his creditable
services or contributions in both Systems credited to his service or
contribution record in each of the Systems, which shall be summed up for
purposes of old age, disability, survivorship and other benefits in case the
covered member does not qualify for such benefits in either or both Systems
without the totalization.
Respondent further contends that petitioner was not discriminated upon
when his application under the Manpower Reduction Program was denied. At
the time of his retirement in 1995, redundancy was the main consideration for
qualification for the Manpower Reduction Program. Petitioner was not
qualified. However in 1996, in order to solve the companys business
reversals, the new president, Dr. Nemesio Prudente, found it necessary to
implement cost-saving strategies, among which was the retrenchment of
willing employees. Thus, the applications for retrenchment of Dr. Buena and
Mrs. Reyes were approved. Respondent had the prerogative to amend its
policies to meet the contingencies of the business for self-preservation.
We rule in the negative the issue of whether petitioners service with the
DOH should be included in the computation of his retirement benefits.
Respondents Retirement scheme19 pertinently provides:
ARTICLE IV
RETIREMENT BENEFITS
SEC 4.1. Normal Retirement Date/Eligibility. -- The normal retirement
date of an employee shall be the first day of the month next following
the employees sixtieth (60th) birthday. To be eligible for the
retirement benefit described under Sec. 4.2, the employee must
have rendered at least ten (10) years of continuous service with the
Company. In case the retiring employee has rendered less than ten
(10) years of service with the Company, he shall be entitled to one
(1) months final monthly basic salary (12/12) for every year of
service.
SEC. 4.2. Normal Retirement Benefit. -- The retirement benefit shall
be payable in lump sum upon retirement which shall be determined
on the basis of the retirees final monthly basic salary (14/12) as
follows:
(a) One (1) months pay for every year of service for those
who have completed at least twenty (20) years of continuous
service with the Company.
(b) One and one-half (1 1/2) months pay for every year of
service for those who have completed twenty-one (21) to
thirty (30) continuous years of service with the Company.
(c) Two (2) months pay for every year of service for those
who have completed at least thirty-one (31) years of service
with the Company.
It is clear therefrom that the creditable service referred to in the Retirement
Plan is the retirees continuous years of service with Respondent.
Retirement results from a voluntary agreement between the employer and
the employee whereby the latter after reaching a certain age agrees to sever
his employment with the former.20
Since the retirement pay solely comes from Respondents funds, it is but
natural that Respondent shall disregard petitioners length of service in
another company for the computation of his retirement benefits.
Petitioner was absorbed by Respondent from LUSTEVECO on 1 August
1979. Ordinarily, his creditable service shall be reckoned from such date.
However, since Respondent took over the shipping business of
LUSTEVECO and agreed to assume without interruption all the service
credits of petitioner with LUSTEVECO,21 petitioners creditable service must
start from 9 November 1977 when he started working with LUSTEVECO22
until his day of retirement on 1 April 1995. Thus, petitioners creditable
service is 17.3333 years.
We cannot uphold petitioners contention that his fourteen years of service
with the DOH should be considered because his last two employers were
government-owned and controlled corporations, and fall under the Civil
Service Law. Article IX(B), Section 2 paragraph 1 of the 1987 Constitution
states --
Sec. 2. (1) The civil service embraces all branches, subdivisions,
instrumentalities, and agencies of the Government, including
government-owned or controlled corporations with original charters.
It is not at all disputed that while Respondent and LUSTEVECO are
government-owned and controlled corporations, they have no original
charters; hence they are not under the Civil Service Law. In Philippine
National Oil Company-Energy Development Corporation v. National Labor
Relations Commission,23 we ruled:
xxx "Thus under the present state of the law, the test in determining
whether a government-owned or controlled corporation is subject to
the Civil Service Law are [sic] the manner of its creation, such that
government corporations created by special charter(s) are subject to
its provisions while those incorporated under the General
Corporation Law are not within its coverage."
Consequently, Respondent was not bound by the opinion of the Civil Service
Commission of 18 May 1993.
Petitioners contention that the principle of tacking of creditable service is
mandated by Republic Act No. 7699 is baseless. Section 3 of Republic Act
No. 7699 reads:
SEC 3. Provisions of any general or special law or rules and
regulations to the contrary notwithstanding, a covered worker who
transfer(s) employment from one sector to another or is employed in
both sectors, shall have his creditable services or contributions in
both systems credited to his service or contribution record in each of
the Systems and shall be totalized for purposes of old-age, disability,
survivorship, and other benefits in case the covered employee does
not qualify for such benefits in either or both Systems without
totalization: Provided, however, That overlapping periods of
membership shall be credited only once for purposes of totalization
(underscoring, ours).
Obviously, totalization of service credits is only resorted to when the retiree
does not qualify for benefits in either or both of the Systems. Here, petitioner
is qualified to receive benefits granted by the Government Security Insurance
System (GSIS), if such right has not yet been exercised. The pertinent
provisions of law are:
SEC. 12 Old Age Pension. -- (a) xxx
(b) A member who has rendered at least three years but less than
fifteen years of service at the time of separation shall, upon reaching
sixty years of age or upon separation after age sixty, receive a cash
payment equivalent to one hundred percent of his average monthly
compensation for every year of service with an employer
(Presidential Decree No, 1146, as amended, otherwise known as the
Government Service Insurance Act of 1977).
SEC. 4. All contributions paid by such member personally, and those
that were paid by his employers to both Systems shall be considered
in the processing of benefits which he can claim from either or both
Systems: Provided, however, That the amount of benefits to be paid
by one System shall be in proportion to the number of contributions
actually remitted to that System (Republic Act No. 7699).
In any case, petitioners fourteen years of service with the DOH may not
remain uncompensated because it may be recognized by the GSIS pursuant
to the aforequoted Section 12, as may be determined by the GSIS. Since
petitioner may be entitled to some benefits from the GSIS, he cannot avail of
the benefits under R.A. No. 7699.
It may also be pointed out that upon his receipt of the amount of P512,524.15
from Respondent as retirement benefit pursuant to its retirement scheme,
petitioner signed and delivered to Respondent a Release and Undertaking
wherein he waives all actions, causes of actions, debts, dues, monies and
accounts in connection with his employment with Respondent.24 This
quitclaim releases Respondent from any other obligation in favor of
petitioner. While quitclaims executed by employees are commonly frowned
upon as contrary to public policy and are ineffective to bar claims for the full
measure of the employees legal rights, there are legitimate waivers that
represent a voluntary and reasonable settlement of laborers claims which
should be respected by the courts as the law between the parties.25 Settled is
the rule that not all quitclaims are per se invalid or against public policy,
except (1) where there is clear proof that the waiver was wangled from an
unsuspecting or gullible person; and (2) where the terms of settlement are
unconscionable on their face.26 We discern nothing from the record that
would suggest that petitioner was coerced, intimidated or deceived into
signing the Release and Undertaking. Neither are we convinced that the
consideration for the quitclaim is unconscionable because it is actually the
full amount of the retirement benefit provided for in the companys retirement
plan.
In light of the foregoing, we need not discuss any further the issue of whether
petitioner was discriminated by Respondent in the implementation of the
Manpower Reduction Program. In any event, that issue is factual and
petitioner has failed to demonstrate that, indeed, he was discriminated upon.
WHEREFORE, no reversible error on the part of the Respondent Court of
Appeals having been shown, the petition in this case is DENIED and the
appealed decision in CA-G.R. SP No. 51152 is hereby AFFIRMED.
G.R. No. 144153 January 16, 2002
MA. CHONA M. DIMAYUGA, petitioner,
vs.
MARIANO E. BENEDICTO II, TOLL REGULATORY BOARD, GREGORIO
R. VIGILAR, and RONALDO B. ZAMORA, respondents.
DE LEON, JR., J.:
Before us is a petition for review on certiorari seeking the reversal of the
Decision1 dated July 25, 2000 rendered by the former Seventeenth Division
of the Court of Appeals in CA-G.R. SP No. 54733 dismissing the quo
warranto suit filed by petitioner.
The facts are:
On October 26, 1992, then Secretary of Public Works and Highways Jose P.
de Jesus issued a permanent appointment in favor of petitioner Chona M.
Dimayuga as Executive Director II of the Toll Regulatory Board ("Board").2
As its highest-ranking working official, petitioner exercised powers of control
and supervision over the Board's three (3) division, namely its Finance and
Administrative Division, the Technical Division and the Engineering Division.
She also oversaw the Board's build-operate-and-transfer ("BOT") projects,
such as the Metro Manila Skyway Project and the Manila-Cavite Tollway
Project, and likewise participated in the negotiations for the Manila-Subic
Expressway Project and the South Luzon Tollway Extension Project. At the
time, the position of Executive Director II was not deemed part of the career
executive service, that is, until June 4, 1993, when it was included therein.
On May 31, 1994, the Civil Service Commission issued Memorandum
Circular No. 21.3 Section 4 of the Memorandum states:
xxx xxx xxx
4. Status of Appointment of Incumbents of Positions Included Under
the Coverage of the CES. Incumbents of positions which are
declared to be Career Executive Service positions for the first time
pursuant to this Resolution who hold permanent appointment thereto
shall remain under permanent status in their respective positions.
However, upon promotion or transfer to other Career Executive
Service (CES) positions, these incumbents shall be under temporary
status in said positions until they qualify.
xxx xxx xxx
Petitioner alleges that during her tenure, she became the subject of several
administrative and criminal complaints designed to coerce her removal. On
the strength of these complaints, respondent former Department of Public
Works and Highways ("DPWH") Secretary Gregorio R. Vigilar issued a first
ninety-day suspension order4 against petitioner on November 28, 1997.
Upon the expiration of the first suspension, a second ninety-day suspension
order5 dated March 26, 1998 was issued against petitioner, this time by then
Executive Secretary Alexander Aguirre.6
On the expiration of the second suspension order, petitioner re-assumed her
duties on June 25, 1998. However, respondent Vigilar issued on the following
day Department Order No. 85, series of 1998,7 by virtue of which petitioner
was "temporarily detailed" at the Office of the Secretary of the DPWH.
Concurrently, he addressed a Memorandum8 dated June 26, 1998 to
petitioner directing her to report to the Legal Service of the Department "to
assist in the evaluation of appealed cases and preparation of corresponding
decisions thereon involving the implementation of P.D. No. 1096, otherwise
known as the National Building Code of the Philippines," and other cases
that may be assigned to her. As a gesture of protest, petitioner filed a leave
of absence until September 30, 1998 rather than assume a position which
she considered a demotion.
In the meantime, responding to a letter dated December 1, 19989 from
petitioner requesting a clarification on her status, the Career Executive
Service Board ("CESB") replied in a letter dated December 15, 1998,10 to
wit:
xxx xxx xxx
It has always been the stand of the CES Board, even before the
issuance of MC 21 by the CSC, to respect or honor the appointment
status of an official appointed to a position which is subsequently
included in the CES, such that if the appointment was of a
permanent status or nature, the inclusion of the position in the CES
is not deemed to have changed the status of the appointee to the
position. xxx
On September 28, 1998, while she was on leave, petitioner received a letter
dated September 22, 1998 from respondent Vigilar informing her that then
President Joseph E. Estrada had appointed respondent Mariano E.
Benedicto II in her stead as Executive Director II of the Board. The letter
cited a Memorandum dated June 30, 199811 issued by then Executive
Secretary Ronaldo B. Zamora addressed to all heads of departments,
agencies, and offices, as follows:
 1. Pursuant to existing laws and jurisprudence, non-career
officials/personnel or those occupying political positions are deemed
co-terminous with the outgoing Administration.
2. Accordingly, they shall vacate their positions effective 01 July
1998 and turnover their offices to the highest ranking career officials,
unless otherwise specifically retained by the Department Heads
concerned or extended new appointments by the President.
xxx xxx xxx
Since she had been effectively removed from her position, petitioner filed on
September 6, 1999 a petition for quo warranto before the Court of Appeals,
docketed as CA-G.R. SP No. 54733. On July 25, 2000, the appellate court
rendered the assailed decision dismissing petitioner's suit. The appellate
court held that:
xxx xxx xxx
In the case at bar, petitioner was appointed in a permanent capacity
to the position of Executive Director II of the TRB in 1992. At that
time, said position was excluded from the coverage of the CES, so
petitioner was able to occupy said position although she was not a
career service executive officer (CESO). The subsequent inclusion of
her position under the CES, however, did not automatically qualify
her for the said position as she lacked the required eligibility. At
most, the permanent status accorded to her appointment would only
allow her to occupy said position until the appointing authority would
replace her with someone who has the required eligibility therefor.
The CSC, in issuing MC 21, could not have intended to unwittingly
permit non-career service officers to hold on defiantly and in a
permanent character to career service positions by virtue of their
permanent appointments. Such a preposterous interpretation
characterized by (1) entrance based on merit and fitness to be
determined as far as practicable by competitive examinations, or
based on highly technical qualifications; (2) security of tenure; and
(3) opportunity for advancement to higher career positions.
Moreover, such an unthinkable interpretation would lead to an
absurd situation wherein an incumbent could hold on to his post
adamantly for as long as he wants by reason of his permanent
appointment, and even without qualifying for said position.
xxx xxx xxx
Secondly, petitioner may not claim any proprietary right to her post
as Executive Director II of the TRB because this would encroach
upon the executive powers of the President. Such obstinate refusal
by petitioner to vacate said position run counter to the wide latitude
given to the appointing authority or to the President, in this matter, in
exercising his power of appointment in accordance with the
provisions of the Constitution.
Moreover, if We were to espouse petitioner's depthless construction
of Section 4 of MC 21, unqualified government employees would
arrogate to themselves the right to decide to stay permanently in
their respective posts. This would leave the appointing authority
helpless in exercising his power of appointment that also includes
the power of removal.1wphi1.nt
Thirdly, petitioner's claim to security of tenure must be rejected.
This Court has repeatedly held that this guaranty is available only to
permanent appointees [citation omitted].
Under the Administrative Code of 1987, a permanent appointment
shall be issued to a person who meets all the requirements for the
position to which he is being appointed, including the appropriate
eligibility prescribed, in accordance with the provisions of law, rules
and standards promulgated in pursuance thereof.
Petitioner is not a CESO. Without the required eligibility for a career
service position, petitioner cannot be considered a permanent
appointee under the law. As stated, a permanent appointment is
extended to a persons possessing the requisite qualifications,
including the eligibility required, for the position, and thus protected
by the constitutional guaranty of security of tenure. Since petitioner
does not have the prescribed CES eligibility for the position
concerned, she can be removed from office anytime because she
does not have security of tenure.
Likewise, she cannot complain that her removal was not "for cause
provided by law." The phrase "for cause provided for law" is a
guarantee of both procedural and substantive due process. This right
proceeds from one's entitlement to security of tenure which herein
petitioner does not have due to her ineligibility for the position
concerned.
As the Supreme Court held in Achacoso (infra), "[I]t is settled that a
permanent appointment can be issued only to a person who meets
 all the requirements for the position to which he is being appointed,
including the appropriate eligibility prescribed. Achacoso did not. At
best, therefore, his appointment could be regarded only as
temporary. And being so, it could be withdrawn at will by the
appointing authority and "at a moment's notice," conformably to
established jurisprudence."
xxx xxx xxx
Aggrieved by the dismissal of her petition for quo warranto, petitioner comes
to us via the instant petition for review on certiorari, urging the reversal of the
appellate court's decision on the following grounds:
I Career Executive Service:
THE COURT OF APPEALS COMMITTED A SERIOUS AND GRAVE
ERROR IN LAW WHEN IT HELD THAT PETITIONER HAS NO
VESTED RIGHT TO THE POSITION IN QUESTION.
II
THE COURT OF APPEALS COMMITTED A SERIOUS AND GRAVE
ERROR IN LAW WHEN IT HELD THAT PETITIONER'S REFUSAL
TO VACATE HER POSITION RUNS COUNTER TO THE POWER
OF APPOINTMENT AND REMOVAL OF THE PRESIDENT.
III
THE COURT OF APPEALS COMMITTED A SERIOUS AND GRAVE
ERROR IN LAW WHEN IT REJECTED PETITIONER'S CLAIM TO
SECURITY OF TENURE.
IV
THE COURT OF APPEALS COMMITTED A SERIOUS AND GRAVE
ERROR IN LAW WHEN IT DISMISSED THE PETITION FOR QUO
WARRANTO FILED BY PETITIONER.
V
THE COURT OF APPEALS COMMITTED A SERIOUS AND GRAVE
ERROR IN LAW WHEN IT FAILED TO AWARD PETITIONER
MORAL DAMAGES, EXEMPLARY DAMAGES, ATTORNEY'S FEES
AND LITIGATION EXPENSES.
The statutory backbone of petitioner's arguments is Memorandum Circular
No. 21 dated May 31, 1994 issued by the Civil Service Commission ("CSC").
The circular states:
TO: ALL HEADS OF DEPARTMENTS, BUREAUS, AND AGENCIES
OF THE NATIONAL AND LOCAL GOVERNMENT INCLUDING
GOVERNMENT OWNED AND CONTROLLED CORPORATIONS
AND STATE COLLEGES AND UNIVERSITIES.
SUBJECT: Coverage of the Career Executive Service
Pursuant to CSC Resolution No. 94-2925 dated May 31, 1994, the
Commission adopts the following guidelines on the coverage of the
1. Positions Covered by the Career Executive Service.
(a) The Career Executive Service includes the positions of
Undersecretary, Assistant Secretary, Bureau Director,
Assistant Bureau Director, Regional Director (department-
wide and bureau-wide), Assistant Regional Director
(department-wide and bureau-wide) and Chief of
Department Service.
(b) In addition to the above identified position and other
positions of the same category which had been previously
classified and included in the CES, all other third level
positions in all branches and instrumentalities of the national
government, including government-owned or controlled
corporations with original charters are embraced within the
Career Executive Service provided that they meet the
following criteria:
1. the position is a career position;
2. the position is above division chief level;
3. the duties and responsibilities of the position require the
performance of executive or managerial functions.
2. Positions Excluded from the Career Executive Service.
 (a) Supervisory and executive positions which have fixed
terms of office as provided for in the charter of the agency or
as specified by law;
(b) Supervisory and executive positions in the non-career
service which include the following:
1. Elective officials and their personal or confidential
staff;
2. Secretaries and other officials of cabinet rank who
hold their positions at the pleasure of the President
and their personal or confidential staff;
3. Chairman and members of commission and
boards with fixed terms of office and their personal
or confidential staff;
4. Contractual personnel or those whose
employment in the government is in accordance with
a special contract to undertake a specific work or
job, and,
5. Emergency and seasonal personnel.
(c) Supervisory and executive positions in the national
government belonging to the closed career systems which
are administered by special bodies such as the Foreign
Service, Philippine National Police, State Colleges and
Universities unless otherwise provided in their respective
charters, the Scientific Career Service and the like.
3. Position of Head Executive Assistant. The position of Head
Executive Assistant, whether in departments, agencies, branches or
instrumentalities of the national government, including Government-
Owned or Controlled Corporations with the original charters shall not
be within the coverage of the Career Executive Service.
4. Status of Appointment of Incumbents of Positions Included Under
the Coverage of the CES. Incumbents of positions which are
declared to be Career Executive Service positions for the first time
pursuant to this Resolution who hold permanent appointments
thereto shall remain under permanent status in their respective
positions. However, upon promotion or transfer to other Career
Executive Service (CES) positions, these incumbents shall be under
temporary status in said other CES positions until they qualify. (italics
supplied)
5. Exemption from the Coverage in the Career Executive Service of
Agencies. An agency may request the Commission that a position be
declared a non-CES position if the head of the agency believes that
said positions does not properly belong in the Career Executive
Service. A request for exemption should be filed with the Career
Executive Service Office of the Civil Service commission
accompanied by appropriate justifications. Upon receipt of such
request, the Commission shall issue a decision on the matter within
a reasonable time.
6. Positions in Local Government Units. Third level positions in local
government units (municipal corporations) or similar entities
including those devolved from the National Government are, for the
meantime, excluded from the coverage of the Career Executive
Service.
This Memorandum Circular takes effect immediately.
Section 4 of CSC Memorandum Circular No. 21 upon which petitioner relies
makes particular reference to incumbents of positions "which are declared to
be part of the Career Executive Service for the first time pursuant to this
resolution who hold permanent appointments thereto." The position which
petitioner held, however, was classified as part of the career executive
service a year earlier, on June 4, 1993, the legal basis therefor being
Presidential Decree No. 1 dated September 24, 1972,12 adopting the
Integrated Reorganization Plan as part of the law of the land. Upon closer
scrutiny, section 4 appears to contradict the principle which we laid down in
Achacoso v. Macaraig,13 three (3) years prior to the issuance of the
circular, to wit:
It is settled that a permanent appointment can be issued only "to a
person who meets all the requirements for the position to which he is
being appointed, including the appropriate eligibility prescribed."
Achacoso did not. At best, therefore, his appointment could be
withdrawn at will by the appointing authority and "at a moment's
notice," conformably to established jurisprudence.
xxx xxx xxx
The mere fact that a position belongs to the Career Service does not
automatically confer security of tenure on its occupant even if he
does not possess the required qualifications. Such right will have to
 depend on the nature of his appointment, which in turn depends on
his eligibility or lack of it. A person who does not have the requisite
qualifications for the position cannot be appointed to it in the first
place or, only as an exception to the rule, may be appointed to it
merely in an acting capacity in the absence of appropriate eligibles.
The appointment extended to him cannot be regarded as permanent
even if it may be so designated.
It is useful to note that Achacoso served as the jurisprudential basis in
recent cases involving issue of security of tenure in career executive service
positions. In the doctrinal case of Cuevas v. Bacal,14 the object of
controversy was the title of Chief Public Attorney in the Public Attorney's
Office, which requires a CES Rank Level 1. The claimant, respondent Atty.
Josefina Bacal, who possessed a CESO III rank, was appointed as such in
February 1998 by then President Fidel V. Ramos. In July 1998, she was
"transferred" and appointed Regional Director. Designated in her stead by
former President Joseph E. Estrada as "Chief Public Defender" was Atty.
Carina J. Demaisip. As Demaisip was not a CES eligible, Bacal filed a quo
warranto suit before the Court of Appeals questioning the former's
appointment. The Court of Appeals rendered judgment in Bacal's favor
which, however, we reversed.1wphi1.nt
In that case of Bacal this Court emphasized two (2) salient points, to wit:
First, in order to qualify an appointment as permanent, the appointee must
possess the rank appropriate to the position. Failure in this respect will
render the appointment merely temporary. In Atty. Bacal's case, it was ruled
that she did not acquire tenure since she had only a CESO III rank; and that
she was not appointed CESO I which was the requisite eligibility for the
position of Chief Public Attorney.
Second, security of tenure in the career executive service ("CES") is thus
acquired with respect to rank and not to position. The guaranty of security of
tenure to members of the career executive service does not extend to the
particular positions to which they may be appointed - a concept which is
applicable only to first and second-level employees in the civil service - but to
the rank to which they are appointed by the President.
We reiterate those points here if only to serve as a contradistinction to
petitioner's arguments. If a career executive officer's security of tenure
pertains only to his rank and not to his position, with greater reason then that
petitioner herein, who is not even a CESO eligible, has no security of tenure
with regard to the position of Executive Director II of the Toll Regulatory
Board which was earlier classified on June 4, 1993 as part of the career
executive service or prior to the issuance of CSC Memorandum Circular No.
21 dated May 31, 1994.
Our ruling in the fairly recent case of De Leon v. Court of Appeals15 is
more appropriate and applicable to the case at bar. The private respondent
therein, like herein petitioner Dimayuga, was not a career executive service
officer, yet he was issued a permanent appointment as Department Legal
Counsel which is a career executive service position. A dispute arose when
the private respondent therein was reassigned as "Director III (Assistant
Regional Director)" of Region IX. We subsequently rendered judgment in that
case of De Leon finding that the therein private respondent's security of
tenure was not violated. In sustaining his reassignment, we held that:
The mere fact that a position belongs to the Career Service does not
automatically confer security of tenure on its occupant even if he
does not possess the required qualifications. Such right will have to
depend on the nature of his appointment, which in turn depends on
his eligibility or lack of it. A person who does not have the requisite
qualifications for the position cannot be appointed to it in the first
place or, only as an exception to the rule, may be appointed to it
merely in an acting capacity in the absence of appropriate eligibles.
The appointment extended to him cannot be regarded as permanent
even if it may be so designated.
Evidently, private respondent's appointment did not attain
permanency. Not having taken the necessary Career Executive
Service Examination to obtain the requisite eligibility, he did not at
the time of his appointment and up to the present, possess the
needed eligibility for a position in the Career Executive Service.
Consequently, his appointment as Ministry Legal Counsel - CESO
IV/Department Legal Counsel and/or Director III, was merely
temporary. Such being the case, he could be transferred or
reassigned without violating the constitutionally guaranteed right to
security of tenure.
Private respondent capitalizes on his lack of CES eligibility by
adamantly contending that the mobility and flexibility concepts in the
assignment of personnel under the Career Executive Service do not
apply to him because he is not a Career Executive Service Officer.
Obviously, the contention is without merit. As correctly pointed out by
the Solicitor General, non-eligibles holding permanent appointments
to CES positions were never meant to remain immobile in their
status. Otherwise, their lack of eligibility would be a premium vesting
them with permanency in the CES positions, a privilege even their
eligible counterparts do not enjoy.
 Then too, the cases on unconsented transfer invoked by private
respondent find no application in the present case. To reiterate,
private respondent's appointment is merely temporary; hence, he
could be transferred or reassigned to other positions without violating
his right to security of tenure.

In the light of the foregoing premises, the Civil Service Commission's opinion
as embodied in its reply letter to petitioner dated December 15, 1998
sustaining petitioner's alleged permanent appointment as Executive Director
of the Toll Regulatory Board on the basis of section 4 of Memorandum
Circular No. 21 loses persuasion and applicability to the case at bar.
Petitioner is not a CESO eligible. In other words, her instant petition is devoid
of merit.

WHEREFORE, the instant petition is hereby DENIED for lack of merit. The
Decision dated July 25, 2000 rendered by the former Seventeenth Division of
the Court of Appeals in CA-G.R. SP No. 54733 is AFFIRMED. Costs against
petitioner.

SO ORDERED.
G.R. No. 216098 April 21, 2015
BISHOP BRODERICK S. PABILLO, DD, PABLO R. MANALAST AS, JR.,
PhD, MARIA CORAZON AKOL, CONCEPCION B. REGALADO, HECTOR
A. BARRIOS, LEO Y. QUERUBIN, AUGUSTO C. LAGMAN, FELIX P.
MUGA, II, PhD, ATTY. GREGORIO T. FABROS, EVITA L. JIMENEZ, and
JAIME DL CARO, PhD, Petitioners,
vs.
COMMISSION ON ELECTIONS, EN BANC, represented by Acting
Chairperson CHRISTIAN ROBERT S. LIM, and SMARTMATIC-TIM
CORPORATION, represented by Smartmatic Asia-Pacific President
CESAR FLORES, Respondents.
x-----------------------x
G.R. No. 216562
INTEGRATED BAR OF THE PHILIPPINES, Petitioner,
vs.
COMMISSION ON ELECTIONS, represented by its Acting Chairperson
ROBERT S. LIM, and SMARTMATIC-TIM CORPORATION, Respondents.
DECISION
PERLAS-BERNABE, J.:
"Procurement of electoral services and goods constitutes a major part of the
organization of elections in terms of planning, costs and implementation
(purchasing and distribution). Integrity and transparency is thus essential;
lack of integrity in the purchasing system may put the legitimacy of the whole
electoral exercise at risk."1
Before this Court are consolidated petitions for certiorari and prohibition2
assailing respondent the Commission on Elections' (COMELEC) Resolution
No. 99223 dated December 23, 2014, which approved4 a direct contracting
arrangement with respondent Smartmatic-TIM Corporation (Smartmatic-TIM)
for the diagnostics, maintenance, repair, and replacement of the
COMELEC's Precinct Count Optical Scan (PCOS) machines, as well as the
resulting contract thereof, the Extended Warranty Contract (Program 1)5
dated January 30, 2015.
The Facts
In 1997, Congress enacted Republic Act No. (RA) 8436,6 which authorized
the COMELEC "to use an automated election system [(AES)] x x x for the
process of voting, counting of votes and canvassing/consolidation of results
[for the May 11, 1998] national and local elections,"7 as well as for
subsequent national and local electoral exercises. To achieve this purpose,
the COMELEC was "to procure by purchase, lease or otherwise any
supplies, equipment, materials[,] and services needed for the holding of the
elections by an expedited process of public bidding of vendors, suppliers or
lessors."8 RA 8436 further provided that the AES "shall be under the
exclusive supervision and control of the [COMELEC]."9
RA 9369,10 signed into law on January 23, 2007, later amended RA 8436
and was passed "to encourage transparency, credibility, fairness, and
accuracy of elections." Thereunder, "the mandate and authority of the
[COMELEC] to prescribe the adoption and use of the most suitable
technology of demonstrated capability taking into account the situation
prevailing in the area and the funds available for the purpose"11 were
explicitly recognized. RA 9369 authorized the COMELEC "to use an [AES] or
systems in the same election in different provinces, whether paper-based or
a direct recording electronic election system as it may deem appropriate and
practical for the process of voting, counting of votes[,] and
canvassing/consolidation and transmittal of results of electoral exercises,"12
and for such purpose, "to procure, in accordance with existing laws, by
purchase, lease, rent or other forms of acquisition, supplies, equipment,
materials, software, facilities[,] and other services, from local or foreign
sources free from taxes and import duties, subject to accounting and auditing
rules and regulations."13
On March 18, 2009, the COMELEC published a Request for Proposal
(RFP)14 for the public bidding of the lease with option to purchase of an AES
to be used in the May 10, 2010 Automated Synchronized National and Local
Elections.15 Item No. 18, Part V16 of the 2009 RFP states that "[t]he winning
bidder shall assure the availability of parts, labor, and technical support and
maintenance to the COMELEC for the duration of this [p]roject and for the
next ten (10) years should the COMELEC opt to purchase the system after
the lease period."17
On June 9, 2009, the COMELEC En Banc, in Resolution No. 8608,18
resolved to approve the report/recommendation of the COMELEC Special
Bids and Awards Committee (SBAC) dated June 3, 2009, confirming
Smartmatic-TIM - a joint venture company formed by Smartmatic
International Corporation (Smartmatic) and Total Information Management
Corporation (TIM) - as "the bidder with the 'Lowest Calculated Responsive
Bid' [LCRB] and to award the contract for the automation of the elections on
May 10, 2010 to the said joint venture."19
On July 10, 2009, COMELEC and Smartmatic-TIM executed the Contract for
the Provision of an Automated Election System for the May 10, 2010
Synchronized National and Local Elections20 (2009 AES Contract). The
2009 AES Contract pertinently provides that "in the event that [the]
COMELEC exercises its option to purchase [(OTP)] the Goods x x x,"21 until
December 31, 2010:22 (!)the COMELEC "shall pay [Smartmatic-TIM] an
additional amount of [2,130,635,048.15]";23 Q) "a warranty shall be
required in order to assure that: [a] manufacturing defects shall be corrected;
and/or [b] replacements shall be made by [Smartmatic-TIM], for a minimum
period of three (3) months, in the case of supplies, and one (1) year, in the
case of equipment, after performance of this Contract";24 and (J) for the
"PCOS, [Smartmatic-TIM] shall warrant the availability of parts, labor and
technical support and maintenance to [the] COMELEC for ten (10) years, if
purchased, x x x beginning May 10, 2010."25
The COMELEC was able to implement for the first time the AES on a
nationwide scale during the May 10, 2010 Synchronized National and Local
Elections.26
On September 23, 2010, the COMELEC partially exercised the OTP when it
purchased 920 units of PCOS machines with the corresponding
canvassing/consolidation system (CCS) for the special elections in certain
areas in Basilan, Lanao del Sur, and Bulacan.27 The option period was
thereafter extended several times28 and on March 21, 2012, the COMELEC
En Banc issued Resolution No. 937629 approving the full exercise of the
OTP.30 Thus, on March 30, 2012, the COMELEC and Smartmatic-TIM
executed a Deed of Sale31 (2012 Deed of Sale) for the remaining PCOS and
CCS machines, which the COMELEC used during the May 13, 2013
Synchronized National and Local Elections.32 Item 9 of the 2012 Deed of
Sale states that the warranties under Articles 4 and 8 of the 2009 AES
Contract are incorporated and that "pursuant to Article 4.3 of the [2009] AES
Contract, the PCOS machines will be covered by a one (1) year warranty
commencing from the acceptance by the [COMELEC] during the [Hardware
Acceptance Test (HAT)] for every batch of 20,000 units as evidenced by the
date of the Delivery Receipt; Provided, that no warranty period will expire
earlier than 31 May 2013."33
Prior to the scheduled May 13, 2013 Synchronized National and Local
Elections, petitioners in the consolidated cases of Capalla v. COMELEC34
(Capalla) challenged the validity and constitutionality of Resolution No. 9376.
They further prayed for the issuance of a temporary restraining order (TRO)
enjoining the implementation of the 2012 Deed of Sale, which the Court
granted in a Resolution dated April 24, 2012. Nevertheless, the Court, in a
Decision dated June 13, 2012, ruled in favor of the COMELEC, finding that
the latter properly exercised its OTP, despite the extended period therefor,
and, accordingly, declared the 2012 Deed of Sale legal and valid.35
On November 11, 2013, the COMELEC received from Smartmatic-TIM a
proposal letter36 to "extend the warranty" of the PCOS machines for three
(3) years.37 The proposal covered labor, preventive maintenance,
diagnostics, repair and/or replacement of parts from 2014 to 2016.38 A more
detailed version of the said proposal was sent by Smartmatic-TIM to the
COMELEC on November 19, 2013.39
In its Resolution No. 2014-00240 dated August 13, 2014, the COMELEC
Advisory Council (CAC)41 recommended, among others, the reuse of the
existing technology for the upcoming 2016 Elections.42 The CAC also
recommended that the COMELEC seriously consider the use of multiple or
mixed technologies to promote interoperability and encourage innovative
solutions, as well as engaging one or more secondary technologies, which
shall be likewise selected through open public bidding.43
The CAC's technology recommendations were adopted "in general" by the
COMELEC in its Minute Resolution No. 14-062844 dated August 29, 2014.45
Negotiations between the COMELEC and Smartmatic-TIM thereafter
ensued46 and on October 30, 2014, Commissioner Christian Robert S. Lim
(Commissioner Christian Lim), who was the authorized negotiator for the
COMELEC and the Chairperson of the Steering Committee,47 submitted to
the COMELEC's Law Department the Final Extended Warranty Proposal48
of Smartmatic-TIM for review.49
On November 4, 2014, the COMELEC's Law Department issued a
memorandum,50 with subject heading "Review of the Draft Contract for the
2014 Extension to the Warranty (Program 1); Repair and Maintenance of the
Precinct Count Optical Scan (PCOS) Machines." In the said memorandum,
the COMELEC's Law Department stated that it was not provided with the
copies of the annexes of the draft contract and, thus, was constrained to limit
its review only on the general provisions and structure thereof, excluding the
activities and negotiations conducted in the acquisition of the subject
services.51 Furthermore, it mentioned that prior to its review of the Final
Extended Warranty Proposal, a similar proposal for the
"refurbishment/preventive maintenance/ extended warranty /program
updates of the PCOS machines," also from Smartmatic-TIM, was submitted
for its review on June 13, 2014 specifically on the aspect of procuring the
same services through direct contracting under RA 9184,52 otherwise known
as the Government Procurement Reform Act (GPRA).53 Therein, it stressed
that the procedure for direct contracting shall only be applied ![the conditions
to resort to the method are present or complied with, and that the Bids and
Awards Committee (BAC) and the COMELEC's Information Technology
Department (ITD) should first determine and confirm if indeed
SmartmaticTIM is the sole provider of the services to be procured or
otherwise the only entity capable of executing such project, to the exclusion
of others, as well as if the ITD itself, given sufficient manpower, budget, and
resources, will be able to conduct the same.54 In this relation, it noted that
the previous Smartmatic-TIM proposal was similar to the current one55 and,
thus, gave the same recommendation to the subject contract under review.
Based on its understanding, it remarked that the ITD personnel were in the
process of conducting routine and preventive maintenance of the PCOS
machines (which were stored at the Cabuyao warehouse) in order to
maintain satisfactory operating condition by providing for systematic
inspection, detection, and correction of incipient failures either before they
occur or before they develop into major defects, as well as to prevent faults
from occurring by conducting a battery of maintenance tests, measurements,
adjustments, and parts replacement, if necessary.56 As such, it opined that
the conduct of repair was premature, considering that the units requiring
repair, if any, was yet to be determined.57 The same was said of the
replacement servers and network equipment, as well as of the need to
update the MTD58 modem firmware, which were yet to be evaluated.59
Finally, the COMELEC's Law Department drew attention to Item No. 8, Part
V of the 2009 RFP, which provides that all proposals for the AES
procurement project require an extensive training and education program on
the preparation of election systems, counting and canvassing systems and
transmission systems for technical personnel, as well as for repair,
troubleshooting, tuning up and maintenance of machines and electronic
transmission facility.60 In this regard, the COMELEC's Law Department
stated that since the AES procurement project must necessarily form part of
the 2009 AES Contract, Smartmatic-TIM must train the COMELEC's
technical personnel specifically on the foregoing respects.61
These notwithstanding, the COMELEC En Banc, in its Resolution No.
992262 dated December 23, 2014 (Resolution No. 9922), approved Program
1 of Smartmatic-TIM's PCOS Extended Warranty Proposal amounting to
300,000,000.00, exclusive of Value-Added Tax (VAT), through direct
contracting, in view of the following reasons:
First, time is of the essence in the preparation for the May 9, 2016 National
and Local Elections such that the Commission and the Bids and Awards
Committee are constrained by the tight time schedule if public bidding are to
be conducted in the refurbishment and/or repair of the machines considering
all the procurement activities lined up.63
Second, to give the refurbishment and/or the repair of the PCOS Machines to
any third party provider other than SMARTMATIC, the original manufacturer
will be too great a risk considering the highly technical nature of the
refurbishment and/or the repair to be conducted on the machines.64
Third, given that no public bidding will be conducted, it is still legal under RA
9184 for the COMELEC to resort to direct contracting in the present case.65
The Extended Warranty Contract meets the requirements of the procurement
law on direct contracting, particularly,
a) The goods procured are of propriety nature, which can be
obtained only from the proprietary source of the PCOS licensed
technologies and from the exclusive manufacturer, which in the case
of the PCOS is SMARTMATIC.
b) The procurement of critical component of the AES solution from
SMARTMATIC-TIM is a condition precedent to hold it to guarantee
the project performance in accordance with the provisions of the
contract.
c) The PCOS is exclusively manufactured in the Philippines by
SMARTMATIC, which does not have sub-dealers and there is no
direct substitute for the product.66
Last, the proposed extended warranty that is a part of the 2009 AES Contract
- which was a product of a validly conducted public bidding - is still valid and
enforceable.67
The COMELEC further pointed that it was constrained to pursue a direct
contracting arrangement with Smartmatic-TIM for the re-use of the existing
technology since its proposed budget for the purchase of all new technology
was rejected.68
After negotiations by the parties, the contract amount was reduced to
240,000,000.00, exclusive of VAT, and the scope of work expanded to
include all major repairs and replacement of irreparable units, up to four
percent (4%) of all inventoried PCOS machines.69
On January 30, 2015, the COMELEC and Smartmatic-TIM entered into the
Extended Warranty Contract (Program 1),70 whereby Smartmatic-TIM
undertook the following during a five (5)-month period: (a) accomplish a
physical inventory count of all the 81,896 PCOS machines with the
authorized COMELEC representatives ensuring, among others, that the
serial numbers are properly recorded and annotated in the Inventory List of
the COMELEC; (b) complete a full diagnostic of every PCOS machine in
accordance with the Diagnostic Program; (c) examine each PCOS machine
to determine the required refurbishment to bring them back to working
condition; (d) perform a full Preventive Maintenance Program71 of every
PCOS machine; (e) perform all repairs and replacements of the defective
components; and (j) provide replacement units for those PCOS machines
that are irreparable, up to a maximum of four percent (4%) of the total
number of PCOS machines after the inventory count by both parties. The
following were, however, excluded from the scope of work: (a) those PCOS
machines that are unavailable during the five (5) month period of the
Program or those units beyond the four percent (4%) cap; (b) those cosmetic
changes or refinishing of the machines or furnishing of the machines or
furnishing supplies for such purposes, or making specification changes; and
(c) those PCOS machines, where persons or entities other than Smartmatic-
TIM authorized representative, performed maintenance or repair services, as
a result of which, further repair or maintenance is required to be done by a
Smartmatic-TIM authorized representative to restore the machines to good
working condition.72
The Cases
A. G.R. No. 216098.
On February 2, 2015, a petition for certiorari and prohibition73 with prayer for
the issuance of a writ of preliminary injunction was filed by petitioners Bishop
Broderick S. Pabillo, DD, Pablo R. Manalastas, Jr., PhD, Maria Corazon
Akol, Concepcion B. Regalado, Hector A. Barrios, Leo Y. Querubin, Augusto
C. Lagman, Felix P. Muga, II, PhD, Atty. Gregorio T. Fabros, Evita L.
Jimenez, and Jaime DL Caro, PhD (Pabillo, et al.), as registered voters and
taxpayers, alleging that the COMELEC committed grave abuse of discretion
in adopting Resolution No. 9922 as it violates the GPRA, which requires
competitive bidding for government procurement contracts as a general rule.
In this relation, Pabillo, et al. point out that lack of material time is not one of
the instances that would warrant the resort to direct contracting.74
In response, the COMELEC maintains75 that its resort to direct contracting
was legal under Section 52 (h) of Batas Pambansa Bilang (BP) 881, or the
Omnibus Election Code, which authorizes the COMELEC to enter into
negotiations and sealed bids if it finds the requirements of public bidding
impractical to observe.76 It further argues that the instances under the GPRA
when resort to direct contracting may be made are attendant in the case.77
For its part, Smartmatic-TIM claims78 that the elements to justify the resort to
alternative modes of procurement stated in Justice Presbitero J. Velasco,
Jr.'s Concurring Opinion in Capalla79 are present, emphasizing that both the
hardware and software of the PCOS machines are protected under RA
8293,80 or the Intellectual Property Code of the Philippines.81 It also posits
that under the 2009 AES Contract and the 2012 Deed of Sale, the warranty
shall continue for ten (10) years if the COMELEC exercises the OTP and
pays for the machines' maintenance and technical support subject to
prevailing prices.82 It further asseverates that there is no direct substitute for
the PCOS machines and that it is the only entity authorized to provide the
licensed technology in the Philippines.83
B. G.R. No. 216562.
On February 18, 2015, another petition84 assailing the validity of Resolution
No. 9922 was filed, this time by petitioner the Integrated Bar of the
Philippines (IBP). The IBP also assails the validity of the Extended Warranty
Contract (Program 1) entered into between the COMELEC and Smartmatic-
TIM, alleging that the COMELEC erroneously and invalidly resorted to direct
contracting as an alternative method of procurement, thereby violating the
requirements of public and competitive bidding under the GPRA, and that the
supposed "tight time schedule" in the preparation for the May 9, 2016
National and Local Elections is not a ground to dispense with the conduct of
public bidding under the law.85
On March 24, 2015, the Court issued a TRO enjoining the implementation of
the Extended Warranty Contract (Program 1 ), pending resolution of the
cases at hand.86
The Issues Before the Court
The decisive issue in these cases is whether or not the COMELEC gravely
abused its discretion in issuing Resolution No. 9922 and in subsequently
entering into the Extended Warranty Contract (Program 1) with Smartmatic-
TIM. To determine the existence of grave abuse of discretion, the following
sub-issues are to be resolved: (a) whether or not the conditions for direct
contracting stated under Section 50, Article XVI of the GPRA were complied
with; ( b) whether or not direct contracting may be resorted to under Section
52 (h) of the Omnibus Election Code; and (c) whether or not the Extended
Warranty Contract (Program 1), being a part of the 2009 AES Contract, even
required public bidding.87
The Court's Ruling
The petitions are meritorious.
I.
At the outset, respondents invoke various procedural grounds, which would
supposedly warrant the consolidated petitions' outright dismissal. They claim
that petitioners88 did not have the legal standing to institute their
corresponding petitions;89 that certiorari and prohibition are not the proper
remedies to assail the validity of Resolution No. 9922 and the Extended
Warranty Contract (Program 1);90 that direct resort to the Court violated the
doctrine of hierarchy of courts;91 and that nonetheless the petitions were
filed out of time.92
The propositions are rejected.
The Court, taking cue from its ruling in Capalla, which, as mentioned,
involved the legality of the COMELEC's exercise of its OTP under the 2009
AES Contract, despite the extended period therefor, brushes aside any of the
foregoing procedural barriers in view of the compelling significance and
transcendental public importance of the matter at hand. In Capalla, the Court
ruled:
At the outset, we brush aside the procedural barriers (i.e., locus standi of
petitioners and the non-observance of the hierarchy of courts) that
supposedly prevent the Court from entertaining the consolidated petitions. As
we held in Guingona, Jr. v. [COMELEC, 634 Phil. 516, 529 (2010)]: There
can be no doubt that the coming 10 May 2010 [in this case, May 2016]
elections is a matter of great public concern. On election day, the country's
registered voters will come out to exercise the sacred right of suffrage. Not
only is it an exercise that ensures the preservation of our democracy, the
coming elections also embodies our people's last ounce of hope for a better
future. It is the final opportunity, patiently awaited by our people, for the
peaceful transition of power to the next chosen leaders of our country. If
there is anything capable of directly affecting the lives of ordinary Filipinos so
as to come within the ambit of a public concern, it is the coming elections,
more so with the alarming turn of events that continue to unfold. The wanton
wastage of public funds brought about by one bungled contract after another,
in staggering amounts, is in itself a matter of grave public concern.
Thus, in view of the compelling significance and transcending public
importance of the issues raised by petitioners, the technicalities raised by
respondents should not be allowed to stand in the way, if the ends of justice
would not be subserved by a rigid adherence to the rules of procedure.93
Corollarily, in Roque, Jr. v. COMELEC,94 it was held that:
[The] bottom line is that the Court may except a particular case from the
operations of its rules when the demands of justice so require. Put a bit
differently, rules of procedure are merely tools designed to facilitate the
attainment of justice. Accordingly, technicalities and procedural barriers
should not be allowed to stand in the way, if the ends of justice would not be
subserved by a rigid adherence to the rules of procedure.95
Indeed, the conduct of the upcoming 2016 Elections is dependent on the
functional state of the existing PCOS machines purchased by the
COMELEC. PCOS means "a technology wherein an optical ballot scanner,
into which optical scan paper ballots marked by hand by the voter are
inserted to be counted, is located in every precinct."96 As the AES' s
groundwork mechanism, it is imperative that the PCOS machines, come
election day, are of optimal utility. Following the CAC's recommendation to
re-use the existing technology for the said elections,97 the COMELEC
proceeded to procure services for the repair and refurbishment of the PCOS
machines. The COMELEC, however, through its Resolution No. 9922,
decided to pursue a direct contracting arrangement with Smartmatic-TIM,
which has now resulted in the execution of the Extended Warranty Contract
(Program 1 ). Petitioners assail the validity of the foregoing courses of action
mainly for violating the GPRA. Thus, if only to ensure that the upcoming
elections is not mired with illegality at this basic, initial front, this Court,
pursuant to its unyielding duty as final arbiter of the laws, deems it proper to
thresh out the above-stated substantive issues, reasonably unfettered by the
rigors of procedure.
II.
The resolution of the substantive aspect of this case is predicated first on a
basic understanding of the fundamentals of public bidding.
In this jurisdiction, public bidding is the established procedure in the grant of
government contracts.98 Section 3, Article I of the GPRA - the standing
procurement law approved on January 10, 2003 - states that "[a]ll
procurement of the national government, its departments, bureaus, offices
and agencies, including state universities and colleges, government-owned
and/or-controlled corporations, government financial institutions and local
government units, shall, in all cases, be governed by these principles:
(a) Transparency in the procurement process and in the
implementation of procurement contracts.
(b) Competitiveness by extending equal opportunity to enable private
contracting parties who are eligible and qualified to participate in
public bidding.
(c) Streamlined procurement process that will uniformly apply to all
government procurement. The procurement process shall be simple
and made adaptable to advances in modem technology in order to
ensure an effective and efficient method.
(d) System of accountability where both the public officials directly or
indirectly involved in the procurement process as well as in the
implementation of procurement contracts and the private parties that
deal with government are, when warranted by circumstances,
investigated and held liable for their actions relative thereto.
 (e) Public monitoring of the procurement process and the
implementation of awarded contracts with the end in view of
guaranteeing that these contracts are awarded pursuant to the
provisions of this Act and its implementing rules and regulations, and
that all these contracts are performed strictly according to
specifications."
Commission on Audit v. Link Worth International, Inc.99 synthesizes these
principles as such: Public bidding as a method of government procurement is
governed by the principles of transparency, competitiveness, simplicity and
accountability. These principles permeate the provisions of [the GPRA] from
the procurement process to the implementation of awarded contracts. x x
x100
By its very nature, public bidding aims to protect public interest by giving the
public the best possible advantages through open competition.101 Under
Section 5 (e), Article I of the GPRA, public bidding is referred to as
"Competitive Bidding," which is defined as "a method of procurement which
is open to participation by any interested party and which consists of the
following processes: advertisement, pre-bid conference, eligibility screening
of prospective bidders, receipt and opening of bids, evaluations of bids, post-
qualification, and award of contract, the specific requirements and mechanics
of which shall be defined in the [GPRA's Implementing Rules and
Regulations (IRR)]."102
Case law states that competition requires not only bidding upon a common
standard, a common basis, upon the same thing, the same subject matter,
and the same undertaking, but also that it be legitimate, fair and honest and
not designed to injure or defraud the government.103 The essence of
competition in public bidding is that the bidders are placed on equal footing
which means that all qualified bidders have an equal chance of winning the
auction through their bids.104 Another self-evident purpose of competitive
bidding is to avoid or preclude suspicion of favoritism and anomalies in the
execution of public contracts.105
III.
It is an established public policy,106 as well as a statutory mandate107 that
all government procurement108 shall be done through competitive public
bidding. However, as an exception, Article XVI of the GPRA sanctions a
resort to alternative methods of procurement, among others, via direct
contracting:
ARTICLE XVI
ALTERNATIVE METHODS OF PROCUREMENT
Section 48. Alternative Methods. -Subject to the prior approval of the Head of
the Procuring Entity or his duly authorized representative, and whenever
justified by the conditions provided in this Act, the Procuring Entity may, in
order to promote economy and efficiency, resort to any of the following
alternative methods of Procurement:
a. Limited Source Bidding, otherwise known as Selective Bidding - a
method of Procurement that involves direct invitation to bid by the
Procuring Entity from a set of pre-selected suppliers or consultants
with known experience and proven capability relative to the
requirements of a particular contract;
b. Direct Contracting, otherwise known as Single Source
Procurement - a method of Procurement that does not require
elaborate Bidding Documents because the supplier is simply asked
to submit a price quotation or a pro-forma invoice together with the
conditions of sale, which offer may be accepted immediately or after
some negotiations;
c. Repeat Order - a method of Procurement that involves a direct
Procurement of Goods from the previous winning bidder, whenever
there is a need to replenish Goods procured under a contract
previously awarded through Competitive Bidding;
d. Shopping - a method of Procurement whereby the Procuring Entity
simply requests for the submission of price quotations for readily
available off-the-shelf Goods or ordinary/regular equipment to be
procured directly from suppliers of known qualification; or
e. Negotiated Procurement -a method of Procurement that may be
resorted under the extraordinary circumstances provided for in
Section 53 of this Act and other instances that shall be specified in
the IRR, whereby the Procuring Entity directly negotiates a contract
with a technically, legally and financially capable supplier, contractor
or consultant.
In all instances, the Procuring Entity shall ensure that the most advantageous
price for the government is obtained. (Emphases supplied)
Section 48.2 of the GPRA IRR provides that alternative methods of
procurement are only allowed in highly exceptional cases:
48.2. In accordance with Section 10 of this IRR, as a general rule, the
Procuring Entities shall adopt public bidding as the general mode of
procurement and shall see to it that the procurement program allows
sufficient lead time for such public bidding. Alternative methods shall be
resorted to only in the highly exceptional cases provided for in this Rule.
(emphasis supplied)
Meanwhile, the Manual of Procedures for the Procurement of Goods and
Services of the Government Procurement Policy Board (GPPB Manual)
explains that the GPRA allows the use of alternative methods of procurement
in some exceptional instances, provided: (.!!.) there is prior approval of the
Head of the Procuring Entity on the use of alternative methods of
procurement, as recommended by the BAC; and (fl.) the conditions required
by law for the use of alternative methods are present. As additional
requisites, (f) the Procuring Entity must ensure that the method chosen
promotes economy and efficiency, and (d) that the most advantageous price
for the government is obtained.109
IV.
The compliance of the COMELEC with the second requisite as above-stated
is one of the primary issues in these cases. It is undisputed that the
COMELEC had not conducted a public bidding and, instead, resorted to
direct contracting when it procured from Smartmatic-TIM the services for the
repair and refurbishment of the existing PCOS machines through the
Extended Warranty Contract (Program 1), as authorized under Resolution
No. 9922.
Direct contracting, otherwise known as "Single Source Procurement," refers
to "a method of Procurement that does not require elaborate Bidding
Documents because the supplier is simply asked to submit a price quotation
or a pro-forma invoice together with the conditions of sale, which offer may
be accepted immediately or after some negotiations."110
The parameters for valid direct contracting are found in Section 50, Article
XVI of the GPRA: SEC. 50. Direct Contracting. -Direct Contracting may be
resorted to only in any of the following conditions:
a) Procurement of Goods of proprietary nature, which can be obtained only
from the proprietary source, i.e. when patents, trade secrets and copyrights
prohibit others from manufacturing the same item;
b) When the Procurement of critical components from a specific
manufacturer, supplier or distributor is a condition precedent to hold a
contractor to guarantee its project performance, in accordance with the
provisions of this contract; or,
c) Those sold by an exclusive dealer or manufacturer, which does not have
sub-dealers selling at lower prices and for which no suitable substitute can
be obtained at more advantageous terms to the Government. (Emphasis
supplied)
While compliance with only one condition is enough to justify the
COMELEC's resort to direct contracting (as evinced by the disjunctive "or",
but provided that the other requisites of approval of the Head of the
Procuring Entity, promotion of economy and efficiency, and most
advantageous price to the government are equally complied with),
respondents are insistent that all of the foregoing conditions attend in these
cases. The Court, thus, examines these claims, determinative as they are of
the validity of Resolution No. 9922 and the Extended Warranty Contract
(Program 1).
V.
Under Section 50 (a), Article XVI of the GPRA, direct contracting may be
allowed when the procurement involves goods of proprietary nature, which
can be obtained only from the proprietary source - that is, when patents,
trade secrets, and copyrights prohibit others from manufacturing the same
item. The applicability of said condition was explicated in the GPPB Manual
as follows:
This is applicable when the goods or services being procured are covered by
a patent, trade secret or copyright duly acquired under the law. Under the
Intellectual Property Code of the Philippines (R.A. No. 8293), the registered
owner of a patent, a copyright or any other form of intellectual property has
exclusive rights over the product, design or process covered by such patent,
copyright or registration. Such exclusive right includes the right to use,
manufacture, sell, or otherwise to derive economic benefit from the item,
design or process.111
Petitioners contend that the "goods" sought to be procured in these cases
refer to the refurbishment, maintenance, diagnostics, and repair of the PCOS
machines, which are not protected by patents, trade secrets, and copyrights
owned by Smartmatic-TIM. Thus, they may be contracted out from other
service providers.112
On the other hand, respondents maintain that the goods sought to be
procured by the COMELEC are of proprietary nature which may only be
obtained from the proprietary source, in this case Smartmatic-TIM, which
owns the intellectual property rights over such goods.113 The Court agrees
with petitioners.
Goods are considered to be of "proprietary nature" when they are owned by
a person who has a protectable interest in them or an interest protected by
intellectual property laws.114
Here, it has not been seriously disputed that Smartmatic-TIM has intellectual
property rights over the SAES 1800 AES, comprised of the PCOS machines,
as well as the software program used to run the technology. In support
thereof, Smartmatic-TIM has drawn attention to United States (US) Patent
Application Publication No. US 2012/0259681 A 1115 dated October 11,
2012 for the invention called "Appending Audit Mark Image" (US Patent App.
No. US 2012/0259681 A1)116 and US Copyright Registration No. TX 7-921-
024 dated October 16, 2014117 for the work entitled "Democracy Suite
Election Management System Software version 4.14" (US Copyright Reg.
No. TX 7-921-024),118 both in the name of Dominion Voting Systems, Inc.,
which - as Smartmatic-TIM alleges in a Letter119 dated November 25, 2014
to the COMELEC - has already granted to it the Perpetual License to use the
Dominion "licensed technology" embodied in the existing machines, the
transfer of PCOS and Election Management System (EMS) Intellectual
Property Rights, and the exclusive rights to manufacture and sell the PCOS
and EMS in the Philippines.
However, it is at once apparent that the "goods" subject of these cases
neither pertain to the PCOS machines nor the software program
aforementioned, but rather to the services for the machines' repair and
refurbishment, which in itself constitutes a distinct contract object that is
susceptible to government procurement through competitive public bidding.
As defined in Section 5 (h), Article I of the GPRA, "services such as the
repair and maintenance of equipment" are included within the ambit of the
term "goods" as applied within the context of the procurement law:
Section 5. Definition of Terms. - For purposes of this Act, the following terms
or words and phrases shall mean or be understood as follows:
(h) Goods - refer to all items, supplies, materials and general support
services, except consulting services and infrastructure projects, which may
be needed in the transaction of the public businesses or in the pursuit of any
government undertaking, project or activity, whether in the nature of
equipment, furniture, stationery, materials for construction, or personal
property of any kind, including non-personal or contractual services such as
the repair and maintenance of equipment and furniture, as well as trucking,
hauling, janitorial, security, and related or analogous services, as well as
procurement of materials and supplies provided by the [P]rocuring [E]ntity or
such services. (Emphasis supplied)
A perusal of the aforementioned patent120 and copyright121 documents
reveals that Smartmatic-TIM' s existing intellectual property rights do not
cover the services subject of these cases. No evidence has been presented
to show that it possessed intellectual property rights over the method,
process, system, program, or work of servicing the said PCOS machines for
their repair and refurbishment. Accordingly, Smartmatic-TIM cannot be said
to be the services' proprietary source, thus, negating its purported exclusivity
as the COMELEC claims.
At any rate, even if it is assumed that Smartmatic-TIM is the proprietary
source of the services or that the intended repair and refurbishment would
necessarily entail a modification of the PCOS hardware and software of
which its existing intellectual property rights cover, the COMELEC is still not
bound to engage Smartmatic-TIM on an exclusive basis. Based on the 2009
AES Contract, Smartmatic-TIM would grant the COMELEC a perpetual, but
non-exclusive license to use, modify, and customize the PCOS systems and
software, including the right to alter and modify the source code itself, for all
future elections, when the latter exercises its option to purchase (which it
eventually did), with certain limitations as hereunder stated: ARTICLE 9
SOFTWARE AND LICENSE SUPPORT
9.1 The PROVIDER shall furnish all systems and software provided in
Components 1, 2 and 3, and their accompanying licenses and grant to
COMELEC a one-time non-transferable right or license to use the software,
system and other goods at the voting centers, canvassing/ consolidation
centers, central servers, backup/ redundancy servers, and in such other
locations as COMELEC may choose.
9.2 Should COMELEC exercise its option to purchase, it shall have
perpetual, but non-exclusive license to use said systems and software and
may have them modified at COMELEC's expense or customized122 by the
licensor for all future elections as hereby warranted by the PROVIDER, as
per the license agreement. Accordingly, the PROVIDER shall furnish
COMELEC the software in such format as will allow COMELEC to pursue the
same. 9.3. COMELEC agrees that it shall not:
(a) transfer the software and related materials to any third party;
(b) reverse engineer, disassemble, decompile, modify or transmit the
software in any form or by any means for any purpose other than for
this Project, unless COMELEC has purchased it for Philippine
elections; or
 (c) use any software acquired hereunder for any purpose other than
the operation of voting, counting, and canvassing/ consolidation of
votes. x x x x
9.5 x x x.
xxxx
After purchase, COMELEC shall be authorized to use the software system
and make such alterations and modifications on the source code that are
necessary or desirable for the proper use of the software system as provided
in Article 9.2 above. COMELEC shall not sell, lease, transfer or otherwise
convey the software to any other individual, company or entity. The
PROVIDER undertakes and guarantees to keep such information and
documentation up-to-date. Escrow charges or expenses shall be for the
account of the PROVIDER.123 (Emphases and underscoring supplied)
Indeed, the license granted is but a natural incident of the COMELEC's
exercise of the OTP, by which it had acquired ownership over the PCOS
machines;124 hence, the COMELEC should already be able to freely exploit
them for the purpose that they were purchased. The only limitations, as may
be above-gleaned, are on their commercialization as such would be clearly
foreign to the contract's objective. It would be both absurd and unfair if the
COMELEC's ability to effectively operate the machines would remain solely
dependent on Smartmatic-TIM notwithstanding its acquired ownership over
the same. While the intellectual property rights of Smartmatic-TIM were
acknowledged by the COMELEC, by no means was it precluded - as it
should not be precluded - from the complete utilization of the machines as
long as it advances election-related purposes:
ARTICLE 10
INTELLECTUAL PROPERTY
10.1 The PROVIDER warrants that all intellectual property rights in or related
to the Goods and/or Services, including but not limited to patents and other
know-how and copyright, both registered and unregistered, owned and/or
otherwise used by the PROVIDER, and all goodwill related thereto are, and
shall remain at all times, the exclusive property of SMARTMATIC; and
COMELEC acknowledges the same, and shall not exploit, reproduce or use
the same except as expressly provided in this Contract.125 (Emphasis and
underscoring supplied)
For these reasons, the COMELEC cannot insist that the PCOS machines
should be repaired and/or refurbished solely by Smartmatic-TIM. Therefore,
the first condition for direct contracting under Section 50 (a), Article XVI of
the GPRA does not exist.
The second scenario, under Section 50 (b ), Article XVI of the GPRA, which
would justify a resort to direct contracting is when the procurement of critical
components from a specific manufacturer, supplier or distributor is a
condition precedent to hold a contractor to guarantee its project performance,
in accordance with the provisions of the contract. The GPPB Manual explains
that:
This is applicable when there is a contract for an infrastructure project
consisting of the construction/repair/renovation of a plant, and critical
components of such plant are prescribed by the contractor for it to guarantee
its contract performance. For example, in the construction of a power
generation plant, the contractor may require the use of certain components
manufactured by a specific manufacturer, whose products have been found
to meet certain standards and are compatible with the technology used by
the contractor. In this instance, Direct Contracting may be resorted to in the
procurement of such critical plant components. However, the BAC must
require technical proof that such critical plant components are the ONLY
products compatible with the plant.126
Respondents are of the view that the direct contracting arrangement falls
under this second condition. In this regard, the COMELEC claims that
Smartmatic-TIM will not take responsibility for malfunctioning machines if
they are tampered with by other entities as per the warranty provisions of the
2009 AES Contract, which were incorporated in the 2012 Deed of Sale.
Thus, the engagement of Smartmatic-TIM constitutes a critical component or
a condition precedent if the COMELEC were to hold it for its existing
warranties.127
Petitioners counter that the COMELEC failed to show that Smartmatic-TIM is
the sole entity which can provide the subject services. As such, it cannot be
inferred that the latter is the only entity that has the technical expertise in
refurbishment, maintenance, diagnostics, and repair of the PCOS
machines.128
Petitioners' argument is tenable. Further reasons equally shore up their
cause.
First, the subject "goods" to be procured, i.e., repair and refurbishment
services, are not critical components of any infrastructure project,129 whose
manufacture and/or supply may be solely availed of from Smartmatic-TIM. A
component is defined as "a part or element of a larger whole."130 It is critical
when it has a decisive or crucial importance in the success, failure, or
existence131 of the project. While it may be argued that repair and
refurbishment are critical to the functionality of the existing PCOS machines,
they cannot be considered as "components" thereof as they are not
elemental parts that make up the machine but are auxiliary services that
pertain to an output that has already been completed.
Second, while the procurement of the parts for the repair and refurbishment
of the PCOS machines may necessitate the procurement of critical
components, it has not been settled that Smartmatic-TIM, who claims to be
the exclusive manufacturer of the SAES 1800 PCOS machines in the
Philippines, is the only entity capable of supplying parts for the machines'
repair and refurbishment. Neither has it been convincingly shown that the
PCOS machines could not be repaired or refurbished if the parts used are
those manufactured by another company, nor would the functionality of the
machines be compromised if parts of equivalent quality, although not of the
exact make than that manufactured by Smartmatic-TIM, are to be used for
repair and refurbishment. To recount, not only was the bidding of the 2009
AES Contract participated in by Smartmatic-TIM, but also by other
technology companies, such as the consortiums of Indra Sistemas, S.A.,
Hart Intercivic, and SAHI; AMA Group Holdings Corp. and Election Systems
and Software International Inc.; and Gilat Satellite Network Ltd., F.F. Cruz &
Co., Inc., and Filipinas Systems, Inc., among others,132 who may as well be
capable of servicing the PCOS machines and/or providing the parts therefor.
A preliminary determination could have been made if only an initial industry
survey had been duly conducted by the COMELEC's BAC. The GPPB
Manual relevantly provides:
How can Direct Contracting be justified?
To justify the need to procure through the Direct Contracting method, the
BAC should conduct a survey of the industry and determine the supply
source. This survey should confirm the exclusivity of the source of goods or
services to be procured. In all cases where Direct Contracting is
contemplated, the survey must be conducted prior to the commencement of
the procurement process. Moreover, the Procuring Entity must justify the
necessity for an item that may only be procured through Direct Contracting,
and it must be able to prove that there is no suitable substitute in the market
that can be obtained at more advantageous terms.
Who are involved in procurement through Direct Contracting?
The following are involved in the conduct of direct contracting:
1. The Head of the Procuring Entity;
2. The BAC;
3. TheTWG;
4. The BAC Secretariat/ Procurement Unit; and
5. The supplier/manufacturer.
Methodology: How is Direct Contracting conducted?
The following steps are undertaken in conducting Direct Contracting:
1. The method of procurement to be used shall be as indicated in the
approved APP. If the original mode of procurement recommended in
the APP was Public Bidding but cannot be ultimately pursued, the
BAC, through a resolution shall justify and recommend the change in
the mode of procurement to be approved by the Head of the
Procuring Entity.
2. For information purposes, the BAC, through the BAC Secretariat
shall post the notice direct contracting in the following:
a. The PhilGEPS;
b. The website of the Procuring Entity and its electronic
procurement service provider, if any; and
c. Any conspicuous place in the premises of the Procuring
Entity.
3. The BAC, through the TWG and the BAC Secretariat, prepares
the Request for Quotation, technical specifications and draft contract
in accordance with the procedures laid down in this Manual, in the
IRR-A and in the PBDs.
4. The BAC, through the Secretariat, identifies the supplier from
whom the goods will be procured.
5. If a pre-procurement conference is required or deemed necessary,
as previously discussed in this Manual, the BAC holds such a
conference. If a pre-procurement conference is held, the participants
should confirm the existence of the conditions required by law for
procurement through Direct Contracting.
 x x x x133 (Emphases and underscoring supplied)
Unfortunately, it was not shown that the said procedures, i.e., that of (a) an
initial industry survey (during which the BAC "should confirm the exclusivity
of the source of goods or services to be procured," and "must justify the
necessity for an item that may only be procured through Direct Contracting"
and "be able to prove that there is no suitable substitute in the market that
can be obtained at more advantageous terms") and even (b) a pre-
procurement conference134 (which is required since the "goods" to be
procured amount to more than 2,000,000.00, and during which the
participants, led by the BAC, "ensures that the procurement will proceed in
accordance with the PPMP135 [(Project Procurement Management Plan,
whereby the schedule of milestone activities is identified and the method of
procurement determined136)]" had been observed by the COMELEC in
these cases.137 Note that the foregoing were prescribed itself by the GPPB
in its issued Manual of Procedures for the Procurement of Goods and
Services, which is currently posted at its own website.138 Under Section 63,
Article XX of the GPRA, the GPPB was "established to: (a) protect national
interest in all matters affecting public Procurement, having due regard to the
country's regional and international obligations; (b) formulate and amend,
whenever necessary, the IRR and the corresponding standard forms for
Procurement; ( c) ensure that Procuring Entities regularly conduct
Procurement training programs and prepare a Procurement operations
manual for all offices and agencies of government; and ( d) conduct an
annual review of the effectiveness of [the GPRA] and recommend any
amendments thereto, as may be necessary. x x x." Thus, owing to the GPPB'
s statutory mandate, its issuances, in so far as matters of government
procurement are concerned, should be accorded with authoritative value. In
fine, the COMELEC's non-compliance with the GPPB's set procedures -
formative as they are of the bidding rules which have been crafted precisely
to realize the objectives of the procurement law and give life to the State's
policy on public bidding - may, in itself, be considered as a ground to
invalidate the resultant contract.139
Besides, it is even speculative, at this point, to say that the procurement of
the subject services is necessary since it appears that an initial diagnostics of
the PCOS machines had yet to be conducted by the COMELEC's in-house
personnel. The COMELEC's Law Department, in its November 4, 2014
memorandum,140 in fact, conceded that the conduct of repair was
premature:
Also, while under storage at the Cabuyao warehouse, it was our
understanding that the ITD personnel are in the process of conducting
routine and periodic preventive maintenance on the PCOS machines in order
to maintain satisfactory operating condition by providing for systematic
inspection, detection, and correction of incipient failures either before they
occur or before they develop into major defects as well as to prevent faults
from occurring by conducting a battery of maintenance tests, measurements,
adjustments, and parts replacement, if necessary.
As such, the conduct of repair is premature considering that the units
requiring repair, if any, is yet to be determined. The same can be said for the
replacement of servers and network equipment which has yet to be
evaluated.
Most noteworthy of all is that as of the time of such proposal, even to this
writing, the ITD has yet to determine if MTD modem firmware upgrades are
essential and necessary considering that under the current set-up, the PCOS
machines, as well as the whole Automated Elections System were able to
successfully function for the May 10, 2010 Automated Synchronized National
and Local Elections as well as in the May 13, 2013 Automated Synchronized
National, Local and ARMM Elections.141 (Emphases and underscoring
supplied)
And lastly, even if the foregoing were to be discounted, Smartmatic-TIM' s
exclusive engagement cannot be considered as a condition precedent to
guarantee the performance of its warranties under the 2009 AES Contract or
the 2012 Deed of Sale.
Albeit undefined in our local statutes, a warranty has been ordinarily
considered as an agreement to be responsible for all damages that arise
from the falsity of a statement or assurance of fact. In other words, a
warranty promises indemnity against defects in an article sold.142 In Ang v.
CA,143 a warranty was defined as "a statement or representation made by
the seller of goods, contemporaneously and as part of the contract of sale,
having reference to the character, quality or title of the goods, and by which
he promises or undertakes to insure that certain facts are or shall be as he
then represents them."144
There are two warranties under the 2009 AES Contract, which were all
explicitly incorporated and made part of the 2012 Deed of Sale.145
The first is found in Articles 4.3146 and 8.4147 of the 2009 AES Contract,
both of which pertain to a warranty on manufacturing defects of supplies and
equipment.
Article 4.3 of the 2009 AES Contract states that once the COMELEC
exercises the OTP, it is required that Smartmatic-TIM warrants that
manufacturing defects shall be corrected, and/or replacements shall be made
by it, for a minimum period of three (3) months, in the case of supplies, and
one (1) year, in the case of equipment (such as the PCOS machines), after
performance of the contract:
4.3 OPTION TO PURCHASE
In the event COMELEC exercises its option to purchase the Goods as listed
in Annex "L'', COMELEC shall pay the PROVIDER an additional amount of
Two Billion One Hundred Thirty Million Six Hundred Thirty Five Thousand
Forty Eight Pesos and Fifteen Centavos (Php2,130,635,048.15) as contained
in the Financial Proposal of the joint venture partners -SMARTMATIC and
TIM.
In case COMELEC should exercise its option to purchase, a warranty shall
be required in order to assure that: (a) manufacturing defects shall be
corrected; and/or (b) replacements shall be made by the PROVIDER, for a
minimum period of three (3) months, in the case of supplies, and one (1)
year, in the case of equipment, after performance of this Contract. The
obligation for the warranty shall be covered by retention money of ten
percent (10%) of every option to purchase payment made.
x x x x148 (Emphases and underscoring supplied)
In similar light, Article 8.4 of the 2009 AES Contract reads:
8.4 The PROVIDER shall, at its sole expense, repair or replace any
Equipment found to contain manufacturing defects and it shall be returned to
the PROVIDER's premises at its sole expense. All costs of handling,
transportation and labor relative to the return of the repaired or replaced
Equipment to COMELEC's designated Sites shall also be at the
PROVIDER's expense.149 (Emphasis and underscoring supplied)
The limitations to the warranty on manufacturing defects, which was also
carried over in the 2012 Deed of Sale, are stated in Article 8.5 of the 2009
AES Contract:
8.5 Limitations of Warranties. The warranty obligation of the PROVIDER
shall not extend to:
(a) Equipment the serial number, model number or any other
identification, marking, and security seal of which has been removed
or rendered illegible by COMELEC personnel, without any authority
from the PROVIDER or its technical personnel.
(b) Equipment that has been damaged by malicious misuse, accident
or force majeure.
(c) Equipment the selected component of which has been opened
without the PROVIDER's prior written approval; or
(d) Equipment wherein COMELEC or its agents have made changes
to its physical, mechanical, electrical, software or interconnection
components without written authorization of the PROVIDER.150
To put it simply, these provisions state that Smartmatic-TIM had warranted
that the PCOS machines purchased by the COMELEC are free from
manufacturing defects; otherwise, it will repair or replace, if irreparable, any
defective machines at its own expense for as long as: (a) the defect occurs
within the warranty period, i.e., three (3) months, in the case of supplies, and
one (1) year, in the case of equipment, reckoned from March 30, 2012, i.e.,
the date on which the OTP was exercised and the corresponding 2012 Deed
of Sale was executed; and (b) none of the warranty limitations are breached.
The foregoing warranty on manufacturing defects is separate and distinct
from the second warranty found in Article 8.8 of the 2009 AES Contract, to
wit:
8.8 If COMELEC opts to purchase the PCOS and Consolidation and
Canvassing System (CCS), the following warranty provisions indicated in the
RFP shall form part of the purchase contract:
1) For PCOS, SMARTMATIC shall warrant the availability of parts, labor and
technical support and maintenance to COMELEC for ten (10) years, if
purchased (Item 18, Part V of the RFP), beginning May 10, 2010. Any
purchase of parts, labor and technical support and maintenance not covered
under Article 4.3 above shall be subject to the prevailing market prices at the
time and at such terms and conditions as may be agreed upon.151
x x x x (Emphases supplied)
Under Article 8.8, Smartmatic-TIM warrants that its parts, labor and technical
support and maintenance will be available to the COMELEC, if it so decides
to purchase such parts, labor and technical support and maintenance
services, within the warranty period stated, i.e., ten (10) years for the PCOS,
reckoned from May 10, 2010, or until May 10, 2020. Article 8.8 skews from
the ordinary concept of warranty since it is a mere warranty on availability,
which entails a subsequent purchase contract,152 founded upon a new
consideration, the costs of which (unlike in the first warranty) are still to be
paid. With Article 8.8 in place, the COMELEC is assured that it would always
have access to a capable parts/service provider in Smartmatic-TIM, during
the 10-year warranty period therefor, on account of the peculiar nature of the
purchased goods.
However, in no way does Article 8.8 pre-condition the warranty on availability
on Smartmatic-TIM's exclusive engagement. There are two reasons for this:
First, it cannot be deduced from the deliberate arrangement of the provisions
that the warranty limitations under Article 8.5 (which, in essence, prohibits
unauthorized tampering by the COMELEC and/or by a third party) apply to
the subsequently situated Article 8.8 (i.e., warranty on availability of parts,
labor and technical support and maintenance). On the other hand, Article 8.5
logically follows Article 8.4 (i.e., warranty on manufacturing defects), evincing
that it (Article 8.5) constitutes a limitation to the provision preceding it (Article
8.4);
Second, and more substantially, the Court finds no discernible reason to void
a warranty on availability on account of previous tampering. As mentioned,
under Article 8.8, the COMELEC would still have to engage Smartmatic-TIM
in a subsequent purchase contract, founded upon a new consideration
altogether, and, thus, pay the costs of the parts and services procured. The
fact that the goods had been previously tampered with is immaterial to
Smartmatic-TIM' s future engagement as the warranty would not be voided if
a different service contractor has been engaged by the COMELEC to
conduct repair and refurbishment works. On other hand, it is reasonable - as
it is usually the case - that a warranty on manufacturing defects would be
voided if the goods had already been tampered with; in such an instance, it is
difficult, if not, improbable, to ascertain the cause of the malfunction, and,
hence, determine if the manufacturing defects were attributable to the seller's
fault. Accordingly, the seller (Smartmatic-TIM) should not repair or replace
the defective goods without the buyer (the COMELEC) shouldering the costs.
Simply put, the variance is that Article 8.8 only warrants access to the
purchase of parts and services, whereas Article 8.4 (in relation to Article 4.3)
warrants the functionality of the machines themselves. In fact, the direct
contracting arrangement subject of these cases is the very manifestation of
Article 8.8's enforcement: the COMELEC engaged Smartmatic-TIM for the
repair and refurbishment of the PCOS machines and, now, has to pay a
distinct purchase price therefor. In so doing, the records are bereft of any
showing that the limitations under Article 8.5 were relevant in enforcing the
warranty found in Article 8.8. The COMELEC could very well enforce - as it
did enforce - the warranty on availability notwithstanding a breach of Article
8.5 as the latter limits only the enforcement of the warranty on manufacturing
defects found in Article 8.4 in relation to Article 4.3, which, however, was
stipulated to last only for three (3) months, in the case of supplies, and one
(1) year, in the case of equipment, reckoned from March 30, 2012 (i.e.,
March 30, 2013) and as such, had already lapsed way before Resolution No.
9922 was passed on December 23, 2014. Smartmatic-TIM, in fact, admits
this in its Comment to the Pabillo Petition:
3.170 The original responsibility of [Smartmatic-TIM] on the warranty of the
PCOS machines was only until 2014.153 [Smartmatic-TIM] was not obligated
to diagnose, repair, and refurbish the PCOS machines that would be used for
the 2016 Elections. There is no obligation on the part of [Smartmatic-TIM] to
fulfill the warranty provision of the Deed of Sale when the same has already
expired. In fact, the Warranty Procedure of the 2012 Deed of Sale states that
if the equipment is no longer in warranty, then the client [(the COMELEC)]
will be charged for the diagnostic and repair of the machine. Without the
Extended Warranty Agreement, the COMELEC would have to incur
additional expenses to pay [Smartmatic-TIM], or any other entity, for the
repair and refurbishment of the same.154 (Emphasis supplied)
Hence, with the warranty on manufacturing defects having lost its effect,
there is no way that the COMELEC's engagement of another service
contractor would constitute a breach of that warranty.
That the Extended Warranty Contract (Program I) excludes from the scope of
work those PCOS machines, where persons or entities other than
Smartmatic-TIM authorized representative, performed maintenance or repair
services, as a result of which, further repair or maintenance is required to be
done by a Smartmatic-TIM authorized representative to restore the machines
to good working condition155 does not call for a different conclusion. Said
exclusion was inserted as part of the Extended Warranty Contract (Program
I) that was agreed upon only after the expiration of the original warranty on
manufacturing defects. In other words, the exclusion was only part of
Smartmatic-TIM' s offer for a new contract, which the COMELEC accepted
only after the warranty on manufacturing defects had lapsed.
In fine, the procurement of the repair and refurbishment services from
Smartmatic-TIM cannot be deemed as a condition precedent to hold it to any
of its existing warranties as prescribed by Section 50 (b) of the GPRA.
As a last instance, direct contracting may be legally rationalized under
Section 50 (c), Article XVI of the GPRA when what is involved is the
procurement of goods sold by an exclusive dealer or manufacturer, which
does not have sub-dealers selling at lower prices and for which no suitable
substitute can be obtained at more advantageous terms to the Government.
The GPPB Manual, once more, illustrates:
This condition anticipates a situation where the goods are sold by an
exclusive dealer or distributor, or directly sold by the manufacturer. In this
instance, it is highly unlikely that sub-dealers can sell the same at lower
prices. Further, the Procuring Entity has not identified a suitable substitute for
the product that can be procured at terms more advantageous to the
government.156
Petitioners argue that the COMELEC failed to establish that the repair and
refurbishment of the PCOS machines may be done exclusively by
Smartmatic-TIM. Thus, it cannot be said that no suitable substitute can be
obtained at more advantageous terms to the government.157
On the other hand, respondents insist that since Smartmatic-TIM is the
exclusive manufacturer and distributor of the SAES 1800 PCOS machines in
the Philippines, it is the only certified entity to perform repair and
refurbishment works on the same.158 To support their claim, they presented
a document entitled "Certificates of Intellectual Property Rights Ownership
and Distributorship"159 dated November 25, 2014 signed by Filipinas
Ordofio for Smartmatic International Corporation and Alastair Wells for
Smartmatic-TIM Corporation, which reads:
We hereby certify that the undersigned Smartmatic International Corporation
is the exclusive intellectual property rights owner of the SAES 1800
Automated Election System (AES), comprising amongst other items, the
Precinct Count Optical Scan (PCOS) machines acquired by COMELEC in
March 2012, including its spare parts and critical accessories such as
Transmission Modem, Secured Memory Cartridges/Devices, etc. In addition,
Smartmatic International Corporation and its Affiliate, Smartmatic Tim
Corporation are the only entities authorized to access, modify and upgrade
the software and firmware contained within the said AES in accordance with
the Deed of Sale and Extended Warranty arrangements agreed between
Smartmatic-TIM Corporation and the COMELEC.
We further certify that Smartmatic International Corporation is the exclusive
distributor of SAES 1800 PCOS machines in the Philippines and that its
affiliate Smartmatic TIM Corporation is the sole entity authorized by
Smartmatic International Corporation to distribute the SAES 1800 PCOS
machines in the territory of the Republic of the Philippines.
We affirm and certify that Smartmatic International Corporation is the only
competent entity with the knowledge, tools, expertise, and capability to
upgrade the Hardware, Firmware and Software as well as maintain the
functionalities required by the customer to assure the integrity of the
machines and ultimately, the electoral processes and data.
Petitioners are correct.
While Smartmatic-TIM may be the exclusive manufacturer and distributor of
the PCOS machines and software in the Philippines, there is no evidence to
show that it is the sole entity capable of repairing and/or refurbishing the
same. Smartmatic-TIM's certification - aside from being self-serving and,
thus, of doubtful probative value - is not evidence of the company's exclusive
capability. A business dictionary defines "certification" as a "formal procedure
by which an accredited or authorized person or agency assesses and verifies
(and attests in writing by issuing a certificate) the attributes, characteristics,
quality, qualification, or status of individuals or organizations, goods or
services, procedures or processes, or events or situations, in accordance
with established requirements or standards."160 Paralleled against this
definition, the certification thus operates only as a formal assurance that any
work performed by the issuer's employees would conform to its own
established requirements and standards, for which the client, based on the
issuer's goodwill and reputation, is led to expect a certain quality of work.
With the COMELEC appearing to rely solely on Smartmatic-TIM' s
certification, and more importantly, absent the conduct of an initial industry
survey (which again may, in itself, be considered as a ground to invalidate
the resultant contract as above-explained), it remains uncertain if the repair
and refurbishment of the PCOS machines can be accomplished by other
equally capable service providers at more advantageous terms to the
government. With this, the Court concludes that the third condition - similar to
the previous two conditions - which would justify a resort to direct contracting
under Section 50, Article XVI of the GPRA had not been complied with.
VI.
Non-compliance with the foregoing GPRA requisites notwithstanding, the
COMELEC, nevertheless, justifies its exclusive engagement of Smartmatic-
TIM on account of Section 52 (h) of BP 881, or the Omnibus Election Code,
which, in its view, has not been repealed by the GPRA:161
ARTICLE VII
THE COMMISSION ON ELECTIONS
Sec. 52. Powers and functions of the Commission on Elections. -In addition
to the powers and functions conferred upon it by the Constitution, the
Commission shall have exclusive charge of the enforcement and
administration of all laws relative to the conduct of elections for the purpose
of ensuring free, orderly and honest elections, and shall:
xxxx
(h) Procure any supplies, equipment, materials or services needed for the
holding of the election by public bidding: Provided, That, if it finds the
requirements of public bidding impractical to observe, then by negotiations or
sealed bids, and in both cases, the accredited parties shall be duly notified.
Invoking this provision, the COMELEC asserts that it took into account
various advantages of directly contracting with Smartmatic-TIM, such as the
price thereof. It claims that statutory, as well as daily operational constraints
and budgetary limitations, preclude it from bidding the subject services.162 It
further points out that its ITD personnel are not capable of performing the
required services.163
For their part, petitioners submit that the bidding process can be shortened
depending on the COMELEC's efficiency, and that the period for
refurbishment is merely an approximation, which means that public bidding is
very much feasible.164 They also propound that since two (2) automated
elections have been held, the COMELEC's ITD should have acquired the
necessary knowledge and expertise in performing basic maintenance and
repair on the PCOS machines.165
First, on the law's applicability, Section 52 (h) of BP 881 basically allows the
COMELEC to engage in negotiations or sealed bids if it finds the
requirements of public bidding impractical to observe. BP 881 was passed
way back in 1985, before the advent of both the GPRA (signed into law on
January 10, 2003) and the automated election law (RA 8436, as amended by
RA 9369, signed into law on December 22, 1997). BP 881 's datedness
notwithstanding, the Court deems that said provision remains valid and
effective, absent its express repeal. Indeed, "[b ]asic is the principle in
statutory construction that interpreting and harmonizing laws is the best
method of interpretation in order to form a uniform, complete, coherent, and
intelligible system of jurisprudence, in accordance with the legal maxim
interpretare et concordare leges legibus est optimus interpretandi modus.166
Simply because a later statute relates to a similar subject matter as that of an
earlier statute does not result in an implied repeal of the latter."167
In order to harmonize the provisions of the pertinent laws, the COMELEC's
exercise of its power to conduct negotiations and sealed bids based on the
standard of "impracticality" under Section 52 (h) of BP 881 should be read in
conjunction with the GPRA, the latter being the special law currently
governing all matters of government procurement. Notably, the approach is
called for by Section 76, Article XXV of the GPRA, which provides that "[a]ny
other law, presidential decree or issuance, executive order, letter of
instruction, administrative order, proclamation, charter, rule or regulation
and/or parts thereof contrary to or inconsistent with the provisions of this Act,
are hereby repealed, modified or amended accordingly." It is further
consistent with Sections 12 and 36 of the automated elections law, i.e., RA
8436, as amended by RA 9369, which respectively state that in order "[t]o
achieve the purpose of this Act, the Commission is authorized to procure, in
accordance with existing laws, by purchase, lease, rent or other forms of
acquisition, supplies, equipment, materials, software, facilities, and other
services, from local or foreign sources free from taxes and import duties,
subject to accounting and auditing rules and regulation x x x,"168 and that
"[t]he provision of Batas Pambansa Big. 881, as amended, otherwise known
as the 'Omnibus Election Code of the Philippines,' and other election laws
not inconsistent with this Act shall apply."169
Adopting the foregoing, the Court finds that the most reconciliatory method of
construction, to the extent that fairness and reason would allow, is to
consider the situations stated under the GPRA which would justify a resort to
alternative methods of procurement as instances that particularize Section 52
(h)'s broad gauge of "impracticality."
As an example, Section 50 (b), Article XVI of the GPRA allows direct
contracting when the procurement of critical components from a specific
manufacturer, supplier or distributor is a condition precedent to hold a
contractor to guarantee its project performance, in accordance with the
provisions of his contract. Surely, it is an impractical course of action for a
Procuring Entity to allow an existing warranty to be voided by procuring the
subject goods from another contractor. On the other hand, direct contracting
under Section 50 (a), Article XVI, i.e., procurement of goods of proprietary
nature, which can be obtained only from the proprietary source, and Section
50 (c), Article XVI, i.e., the procurement of goods sold by an exclusive dealer
or manufacturer, which does not have sub-dealers selling at lower prices and
for which no suitable substitute can be obtained at more advantageous terms
to the government, both of the GPRA, are allowed since it is utterly
impractical and in fact, almost impossible to do otherwise.
Considerations of impracticality are also written all over Section 53, Article
XVI of the GPRA which governs Negotiated Procurement:
Sec. 53. Negotiated Procurement -Negotiated Procurement shall be allowed
only in the following instances:
a. In case of two (2) failed biddings as provided in Section 35 hereof;
b. In case of imminent danger to life or property during a state of
calamity, or when time is of the essence arising from natural or man-
made calamities or other causes where immediate action is
necessary to prevent damage to or loss of life or property, or to
restore vital public services, infrastructure facilities and other public
utilities;
 c. Take-over of contracts, which have been rescinded or terminated
for causes provided for in the contract and existing laws, where
immediate action is necessary to prevent damage to or loss of life or
property, or to restore vital public services, infrastructure facilities
and other public utilities;
d. Where the subject contract is adjacent or contiguous to an on-
going infrastructure project, as defined in the IRR: Provided,
however, That the original contract is the result of a Competitive
Bidding; the subject contract to be negotiated has similar or related
scopes of work; it is within the contracting capacity of the contractor;
the contractor uses the same prices or lower unit prices as in the
original contract less mobilization cost; the amount involved does not
exceed the amount of the ongoing project; and, the contractor has no
negative slippage: Provided, further, That negotiations for the
procurement are commenced before the expiry of the original
contract. Wherever applicable, the principle shall also govern
consultancy contract, where the consultants have unique experience
and expertise to deliver the required service; or,
e. Subject to the guidelines specified in the IRR, purchases of Goods
from another agency of the government, such as the Procurement
Service of the DBM, which is tasked with a centralized procurement
of commonly used Goods for the government in accordance with
Letters of Instruction No. 755 and Executive Order No. 359, series of
1989.
The same goes for the alternative procurement methods of Limited Source
Bidding, Repeat Order, and Shopping respectively governed by Sections 49,
51, and 52, Article XVI of the GPRA: Sec. 49. Limited Source Bidding. -
Limited Source Bidding may be resorted to only in any of the following
conditions:
a. Procurement of highly specialized types of Goods and Consulting
Services which are known to be obtainable only from a limited
number of sources; or
b. Procurement of major plant components where it is deemed
advantageous to limit the bidding to known eligible bidders in order
to maintain an optimum and uniform level of quality and performance
of the plant as a whole.
xxxx
Sec. 51. Repeat Order. - When provided for in the Annual Procurement Plan,
Repeat Order may be allowed wherein the Procuring Entity directly procures
Goods from the previous winning bidder whenever there arises a need to
replenish goods procured under a contract previously awarded through
Competitive Bidding, subject to post-qualification process prescribed in the
Bidding Documents and provided all the following conditions are present:
a. The unit price must be equal to or lower than that provided in the
original contract;
b. The repeat order does not result in splitting of requisitions or
purchase orders;
c. Except in special circumstances defined in the IRR the repeat
order shall be availed of only within six (6) months from the date of
the Notice to Proceed arising from the original contract; and,
d. The repeat order shall not exceed twenty-five percent (25%) of the
quantity of each item of the original contract.
Sec. 52. Shopping. - shopping may be resorted to under any of the following
instances:
a. When there is an unforeseen contingency requiring immediate
purchase: Provided, however, That the amount shall not exceed Fifty
thousand pesos (50,000); or
b. Procurement of ordinary or regular office supplies and equipment
not available in the Procurement Service involving an amount not
exceeding Two hundred fifty thousand pesos (250,000): Provided,
however, That the Procurement does not result in Splitting of
Contracts: Provided, further, That at least three (3) price quotations
from bona fide suppliers shall be obtained.
The above amounts shall be subject to a period review by the GPPB. For this
purpose, the GPPB shall be authorized to increase or decrease the said
amount in order to reflect changes in economic conditions and for other
justifiable reasons.
When dissected to their core, these conditions are, in truth, specific
manifestations of impracticality, for which a deviation from the general rule on
public bidding may be extraordinarily permitted. Thus, it may be reasonably
inferred that the parameters of impracticality are, if at all, already fleshed out
in the current procurement law.
It has already been resolved that the COMELEC failed to comply with any of
the conditions by which its selected mode of procurement, i.e., direct
contracting, would have been allowed. Meanwhile, it has not argued that any
other alternative method of procurement can be applied. This
notwithstanding, the COMELEC attempts to go beyond the scope of the
GPRA and extend Section 52 (h)'s application based on two (2) practical
considerations, namely: (a) the alleged tight schedule of conducting a public
bidding and having the PCOS machines repaired/refurbished in time for the
2016 elections; and (b) the great risk of having the PCOS machines
repaired/refurbished by any third party provider in view of the highly technical
nature of the goods:
First, time is of the essence in the preparation for the May 9, 2016 National
and Local Elections such that the Commission and the Bids and Awards
Committee are constrained by the tight time schedule if public bidding are to
be conducted in the refurbishment and/or repair of the machines considering
all the procurement activities lined up.170
Second, to give the refurbishment and/or the repair of the PCOS Machines to
any third party provider other than SMARTMATIC, the original manufacturer
will be too great a risk considering the highly technical nature of the
refurbishment and/or the repair to be conducted on the machines.171
Practicality is a relative term which, to stand the mettle of law, must be
supported by independently verified and competent data. As an exception to
the public policy and statutory command requiring all government
procurement to be conducted through competitive public bidding, a claim of
impracticality should only be based on substantiated projections, else it
would be easy to contrive, and the rule on public bidding easily
circumvented.
As above-intimated, the COMELEC decries that there will not be enough
time to complete the intended repair and refurbishment works on the PCOS
machines by the 2016 National and Local Elections, if it were not to directly
procure the same from Smartmatic-TIM.172 In this relation, it purports in
Resolution No. 9922 that:
In a Memorandum of the BAC to the Commission en bane dated December
9, 2014, it submitted a timeline stating that a two-stage bidding needs eighty
eight (88) calendar days to complete the process. If there is a failure of
bidding, the BAC needs to repeat the whole process doubling the time
needed. After two instances of failed biddings, only then is the Commission
allowed to proceed to negotiated procurement.
The refurbishment of the machines is already slated to start by March 2015.
The Steering Committee in its Implementation Calendar requires at least
eight months for the refurbishment of existing machines, and intends to start
by March 2, 2015 and to end by November 30, 2015. The COMELEC
Information Technology (ITD) has declared that it requires forty (40) days to
inspect and diagnose the PCOS, and an additional two hundred (200) days
to refurbish them. Note that it is already December and the BAC has a little
more than sixty (60) days to conduct the bidding for the refurbishment and/or
repair of the machines so the two-stage procurement is not within the
timeline and even assuming that the BAC will adopt a single stage
procurement, the time needed, which is fifty five (55) calendar days, is only
sufficient to cover one cycle of the process - meaning, there is no room for
failure which is very likely to happen.
It is glaringly evident that the remaining period of about sixty days before the
March target date is terribly insufficient for the conduct of the two-stage
bidding for the refurbishment and/or repair of the machines. Failed biddings
must also be considered in calculating the time required, and would only
further delay the schedule.
Moreover, there is only one BAC tasked to handle all procurement activities
related to the election. These include the Sangguniang Kabataan
procurement scheduled for February 2015 and the regular procurement
aside from and the procurement of the DRE, the additional OMR and all
other election propaganda for 2016. The bidding for the refurbishment and/or
repair of the machines, which is no longer necessary given the exemptions
under Rep. Act No. 9184, will only impede other procurement activities and
impair the efficiency of the BAC.173 (Emphases supplied)
The conclusion is not well-taken.
While the COMELEC's 88 calendar day estimation (double if the first bidding
fails) to conduct a two-stage bidding process is correct, the rest of its
projection, i.e., the forty (40) day inspection and diagnosis period, and the
two hundred (200) day refurbishment period, lacks material basis. The Court
expounds.
Section 38, Article XI of the GPRA provides a three (3)-month cap for the
conduct of each procurement process:
Sec. 38. Period of Action on Procurement Activities. - The procurement
process from the opening of bids up to the award of contract shall not exceed
three (3) months, or a shorter period to be determined by the procuring entity
concerned. Without prejudice to the provisions of the preceding section, the
different procurement activities shall be completed within reasonable periods
to be specified in the IRR.
If no action on the contract is taken by the head of the procuring entity or by
his duly authorized representative, or by the concerned board, in the case of
government-owned and/or -controlled corporations, within the periods
specified in the preceding paragraph, the contract concerned shall be
deemed approved. (Emphasis supplied)
Based on the IRR, it is approximated that it will take a little less than 83
calendar days, more or less, to complete the procurement process, broken
down as follows: (a) 7 days for the advertisement/posting of the invitation to
bid;174 (b) a maximum of 45 days for the submission of bids within which the
pre-bid conference is likewise conducted;175 (c) a maximum of 7 days for
the bid evaluation wherein bids are opened and examined as well as the
determination of the lowest calculated bid or the highest rated bid is
made;176 (d) a maximum of 7 days for the post-qualification process wherein
the BAC makes its recommendation/s to the head of the procuring entity; (e)
a maximum of 7 days for the. approval of award; and (j) a maximum of 10
days for the contract signing between the procuring entity and the winning
bidder.
This period would be doubled when a first bidding fails, and resort to
negotiated procurement, upon a second failed bidding, would be allowed.
Section 35, Article X of the GPRA reads:
Sec. 35. Failure of Bidding. -there shall be a failure of bidding if:
a. No bids are received;
b. No bid qualifies as the Lowest Calculated Responsive Bid; or,
c. Whenever the bidder with the highest rated/lowest calculated
responsive bid refuses, without justifiable cause to accept the award
of contract, as the case may be.
Under any of the above instances, the contract shall be re-advertised and re-
bid. The BAC shall observe the same process and set the new periods
according to the same rules followed during the first bidding. After the second
failed bidding, however, the BAC may resort to negotiated procurement as
provided for in Section 53 of this Act.
Thus, the COMELEC's projection that it will take 88 calendar days, as
maximum,177 to complete a two-stage bidding process (double, if the first
bidding fails) is theoretically correct. Applying the same, this means that the
COMELEC from the time this Decision is promulgated (i.e., May 2015) will be
able to bid out the same in three (3) months (i.e., by August 2015), which
gives it, more or less, nine (9) months until the May 2016 National and Local
Elections to have the machines repaired and/or refurbished. Assuming that a
first bidding fails, the second bidding process should be completed in six (6)
months (i.e., by November 2015); as such, it will still have, more or less,
another six ( 6) months until the May 2016 National and Local Elections to
have the machines repaired and/or refurbished.178
Note, however, that the COMELEC itself concedes in Resolution No. 9922
that it can shorten the bidding process to 55 calendar days, as maximum,179
if only to expedite the procurement of refurbishment/repair services of the
PCOS Machines via a single-stage procurement. Hence, a substantial
reduction of the foregoing periods is altogether possible. In such instance,
the bidding process should be finished in two months (i.e., by July 2015),
leaving it with ten (10) months until the May 2016 National and Local
Elections to have the machines repaired and/or refurbished.
Note further that the periods would be greatly reduced if the minimum
periods of 31 calendar days (for two-stage procurement) and 28 calendar
days (for single-stage procurement), as the COMELEC itself projected, are
successfully followed.180
While the Court finds the COMELEC's conservative bidding timeframe
tenable, it cannot do the same with respect to its projections covering the
inspection and diagnosis (i.e., 40 days), and the repair and/or refurbishment
(i.e., 200 days) of the PCOS machines.
At the outset, it should be underscored that the COMELEC could have
already had the PCOS machines inspected and diagnosed by its own in
house personnel as early as the time it had resolved to re-use the same. The
COMELEC's ITD could have even proceeded to conduct preventive
maintenance procedures, which it admits it is capable of under its
memorandum181 dated May 14, 2014:
This refers to your memorandum dated 13 May 2014 re Query whether the
ITD is capable of providing the Preventive Maintenance and Repair of PCOS
as proposed by the (sic) Smartmatic. Preventive maintenance procedures
include (1) checking of the completeness of peripherals of the PCOS (2)
running the diagnostic program of the PCOS to verify if there are
functionalities in the system that will fail (3) opening of the PCOS cover and
cleaning of dust of the inside parts of the unit, and (4) closing of the PCOS
cover and re-executing the diagnostic program of the PCOS.
Repair includes evaluating the problem of the PCOS functionalities that
failed, identifying the parts that need to be replaced and replacing the parts
that failed.
Please be informed that the ITD can only do the preventive maintenance
procedures. We can identify the reason for PCOS failure by running the
diagnostic program but we do not have the tools for repair and parts for
replacement.
For your information. (Emphases and underscoring supplied)
In fact, as may be above-gleaned, it appears that the COMELEC could have
just procured the "the tools for repair and parts for replacement," and have
the repair and refurbishment done by its own in-house personnel. Note that a
sufficient number of ITD personnel could have well been trained by
Smartmatic-TIM itself on matters related to the repair, refurbishment, tuning
up and maintenance of the PCOS machines, as well as the electronic
transmission facility, pursuant to Item No. 8.2.4, Part V182 of the 2009 RFP.
As correctly observed by the COMELEC's Law Department in its November
4, 2014 Memorandum:183
Part V - OTHER SPECIFICATIONS provides:
"8. Training Plans
All proposals shall include the following training requirements:
8.1 A training program for COMELEC Executives;
8.2 An extensive training and education program on the preparation
of elections systems, counting and canvassing systems and
transmission systems for technical personnel. Such training shall be
sufficient to the point that the COMELEC technical personnel shall
be able to operate the systems with their own. The training shall
address, but shall not be limited to, the following topics:
8.2.1. x x x.
xxxx
8.2.4. Repair, troubleshooting, tuning up and maintenance of
machines and electronic transmission facility x x x"
As such, it is clear that under the AES Procurement Project which must
necessarily form part of the AES Contract executed between Smartmatic-TIM
and the Commission, the former must train COMELEC Technical Personnel
specifically for the repair, troubleshooting, tuning up and maintenance of
machines and electronic transmission facility which includes the subject
PCOS machines. (Emphases and underscoring supplied)
Clearly, Smartmatic-TIM's training obligation - an obligation that was
incipiently required in the RFP to which all bidders at that time were
subjected to and, in fact, included in the 2009 AES Contract's project
scope184 - spans both aspects of preventive maintenance and repair. With
this, the Court is in a quandary as to why the services subject of these cases
would still have to be procured by the COMELEC from an outside service
provider, let alone under an exclusive direct contracting arrangement with
Smartmatic-TIM. Curiously, Smartmatic-TIM has been communicating with
the COMELEC about its proposed extended warranty as early as 2013.185
Hence, unless the COMELEC was already bent on pursuing its current deal
with Smartmatic-TIM, then the latter's training obligation should have been
enforced. To the Court's mind, this would have been the more prudent
course of action: ideally, this would not only narrow down the COMELEC's
task to the procurement of the necessary tools and replacement parts, but
also provide it with a considerable degree of sustainability by minimizing -if
not eliminating - its reliance on Smartmatic-TIM with respect to the upkeep of
the PCOS machines.
Be that as it may, the Court is unable to determine the extent of work to be
accomplished without the machines undergoing initial diagnostics. As such, it
cannot resolve if the COMELEC's 200-day timetable for repair and/or
refurbishment is cogent. In fact, there is no concrete assurance that the
repair and/or refurbishment of the PCOS machines are even necessary. To
reiterate, the COMELEC's Law Department even admitted that the conduct
of repair is premature:186 Also, while under storage at the Cabuyao
warehouse, it was our understanding that the ITD personnel are in the
process of conducting routine and periodic preventive maintenance on the
PCOS machines in order to maintain satisfactory operating condition by
providing for systematic inspection, detection, and correction of incipient
failures either before they occur or before they develop into major defects as
well as to prevent faults from occurring by conducting a battery of
maintenance tests, measurements, adjustments, and parts replacement, if
necessary.
As such, the conduct of repair is premature considering that the units
requiring repair, if any, is yet to be determined. The same can be said for the
replacement of servers and network equipment which has yet to be
evaluated.
x x x x187 (Emphasis and underscoring supplied)
At this point, it should be noted that under the GPRA, the Procuring Entity is
required to prepare bidding documents which shall include, among others,
the delivery time or completion schedule for the goods/services sought to be
procured.188 Similarly, when the Procuring Entity advertises/posts the
invitation to bid, it should contain the contract duration for such
procurement.189 Thus, had the COMELEC decided to bid out the project, it
would have been able to convey to all prospective bidders the tight timeline it
is supposedly working with, and may even receive a proposal with a more
efficient timeframe. At the very least, the COMELEC should have conducted
an initial industry survey to ascertain if other service providers are capable of
accomplishing the works under more favorable terms to it, as well as the
required pre-procurement conference to ensure that the procurement will
proceed in accordance with the PPMP. Unfortunately, the records do not
indicate that these procedures were followed. The reasons for the
COMELEC's non-compliance can only be second-guessed and may even
elude these present cases, but the glaring reality it must face is that
projections tracked on uncertainty cannot be upheld, else it would be easy to
efface the State's mandate on public bidding. The timeline which the
COMELEC had submitted is therefore speculative at best.
The same conclusion obtains with respect to the COMELEC's risk concern.
In Resolution No. 9922, the COMELEC finds it too great of a risk to have the
PCOS machines serviced by a different contractor other than Smartmatic-
TIM in view of their highly technical nature. Particularly, it expresses fears
over the reverse engineering of the PCOS machines, a process which would
likely be undertaken if the machines were to be serviced by a contractor
unfamiliar with the system, and if so done, may end up jeopardizing its
integrity.190 However, without the required industry survey having first been
conducted, the COMELEC's reservation once again borders on the
speculative. In fact, nothing on record convinces this Court that there is no
other service provider which is capable of servicing the PCOS machines
without the need to reverse engineer the same. Neither is this Court
convinced that reverse engineering, if done properly, would impair the
machines' integrity or put "back to zero" the know-how already
accumulated.191 The bid guidelines may very well qualify the COMELEC's
desired body of work, and the bidding process itself screens the capability of
potential bidders to comply with the same. As it was in its earlier
asseveration, the COMELEC is quick to assume the worst but its
assumptions remain unsubstantiated. Accordingly, the COMELEC's
arguments at this juncture are denied altogether.
VII.
Lastly, the COMELEC argues that the Extended Warranty Contract (Program
1) is a mere extension of the 2009 AES Contract, and thus need not undergo
the rigorous process of bidding. In this relation, it draws attention to Article
8.8 of the 2009 AES Contract, which was incorporated under Item No. 9 of
the 2012 Deed of Sale, and deemed as a surviving provision under Article
2.2192 of the 2009 AES Contract. It also makes mention of the Court's ruling
in Capalla, wherein it was declared that a contract is still effective as long as
the performance security has not been released.193
The theory is flawed.
The Extended Warranty Contract (Program 1) cannot be validated by the
mere expedient of characterizing the same as a part of the 2009 AES
Contract. The services of repair and refurbishment cannot be procured from
Smartmatic-TIM through an "extended warranty" mode, unless this Court
assents to a blatant circumvention of the procurement law.
As earlier discussed, under Article 8.8 of the 2009 AES Contract,
Smartmatic-TIM warrants that its parts, labor and technical support and
maintenance will be available to the COMELEC, if it so decides to purchase
such parts, labor and technical support and maintenance services, within the
warranty period stated, i.e., ten (10) years for the PCOS, reckoned from May
10, 2010. Since Article 8.8 is a mere warranty on availability, it entails a
subsequent purchase contract, founded upon a new consideration, to be
effectively invoked. However, by no means does this provision dispense with
the need to bid out the ensuing purchase contract. Neither does this
presuppose that the COMELEC is - for the stated period of ten (10 years) -
already beholden to Smartmatic-TIM. Certainly, the COMELEC's hands
cannot be hamstrung by a mere warranty on availability, which is precisely a
warranty provision that should operate in its favor. In any event, the spirit of
competition which primordially animates the procurement law cannot be
undercut absent the law's own exceptive conditions. Otherwise, other
potential bidders would be deprived of the opportunity to participate and offer
better terms to the government. That Smartmatic-TIM has already acquired
complete monopoly over any subsequent need the government would have
in relation to the PCOS machines for a period of ten (10) years is a notion
this Court, under these circumstances, cannot accept.
Besides, there is an inaccurate portrayal of the Extended Warranty Contract
(Program 1) as a mere "warranty extension."
An extended warranty gives a prolonged warranty to consumers to provide
the additional service of replacing or repairing goods, the defects of which
are directly related to how the item was manufactured.194 As an "extension,''
the defect to be repaired should occur within the extended period covered in
the agreement.195
In these cases, the warranty period for manufacturing defects had, as above-
discussed, lapsed a long time ago, or last March 30, 2013, which follows the
one (1) year warranty period for the PCOS machines, reckoned from March
30, 2012 when the 2012 Deed of Sale was executed. Hence, there was
nothing more that could be extended. As Smartmatic-TIM itself admits:
3.170 The original responsibility of [Smartmatic-TIM] on the warranty of the
PCOS machines was only until 2014.196 [Smartmatic-TIM] was not obligated
to diagnose, repair, and refurbish the PCOS machines that would be used for
the 2016 Elections. There is no obligation on the part of [Smartmatic-TIM] to
fulfill the warranty provision of the Deed of Sale when the same has already
expired. x x x.197 (Emphasis supplied)
Based on said admission,198 the expiration of the aforestated warranty
period becomes an established fact which therefore renders Article 8.1 of the
Extended Warranty Contract (Program 1) false insofar as it states that "[t]he
warranties agreed upon under Articles 4 and 8 of the 2009 AES contract,
including the limitations on warranties under Article 8.5, shall continue to
remain in full force and effect." Clearly, the warranty on manufacturing
defects contained under Articles 4.3 in relation to Articles 8.4 and 8.5 of the
2009 AES Contract is already defunct and thus, cannot "continue to remain
in full force and effect." For the same reason, these provisions cannot be
"incorporated herein by way of reference."199 Meanwhile, the parties could
not have contemplated the extension of Article 8.8 of the 2009 AES Contract
since: (a) the Extended Warranty Contract (Program 1) already provides for
the actual performance of work, and thus does not extend a warranty on the
mere availability of parts, labor, and technical support and maintenance; and
(b) the warranty on availability still subsists, i.e., ten (10) years for the PCOS,
reckoned from May 10, 2010, or until May 10, 2020.
At best, one can construe the Extended Warranty Contract (Program 1) as a
revival, rather than an extension. However, if the Court were to condone this
way of thinking, then the bidding for any service related to the PCOS, or any
government project for that matter, would never be needed at all. All the
Procuring Entity has to do is simply revive the provisions of a dead contract
and perpetually hold itself to the original contract awardee. Clearly, this
undermines the very core of the procurement law - it eliminates competition,
deprives the government of the opportunity to receive offers with more
advantageous terms, and, more significantly, erodes the public's faith by
rousing suspicions of favoritism and anomaly; perforce, the COMELEC's
"extended warranty mode" cannot - as it should not - be sanctioned.
On another front, the COMELEC invokes the Court's ruling in Capalla to
justify its position. However, Capalla is not on all fours with the present
cases; hence, the stare decisis doctrine (to adhere to precedents and not to
unsettle things which are established) is inapplicable.
Capalla essentially validated the COMELEC's exercise of the extended OTP,
which characterization as an option contract was never in doubt. The option
amount was already part of the original amount bidded upon in 2009 for the
AES Contract, thereby negating the need for another competitive bidding:
One. Smartmatic-TIM was not granted additional right that was not
previously available to the other bidders. x xx. Section 4.3 thereof
gives the Comelec the OTP the goods agreed upon. The same
provision states the conditions in exercising the option, including the
additional amount that the Comelec is required to pay should it
exercise such right. It is, therefore, undisputed that this grant of
option is recognized by both parties and is already a part of the
principal contract of lease. Having been included in the RFP and the
bid bulletins, this right given to the Comelec to exercise the option
was known to all the bidders and was considered in preparing their
bids. x x x.
Two. The amendment of the AES contract is not substantial. The
approved budget for the contract was 11,223,618,400.0056
charged against the supplemental appropriations for election
modernization. Bids were, therefore, accepted provided that they did
not exceed said amount. After the competitive public bidding,
Smartmatic-TIM emerged as winner and the AES contract was
thereafter executed. As repeatedly stated above, the AES contract is
a contract of lease with OTP giving the Comelec the right to
purchase the goods agreed upon if it decides to do so. The AES
contract not only indicated the contract price for the lease of goods
and purchase of services which is 7,191,484,739.48, but also
stated the additional amount that the Comelec has to pay if it decides
to exercise the option which is 2,130,635,04.8.15. Except for the
period within which the Comelec could exercise the OTP, the terms
and conditions for such exercise are maintained and respected.
Admittedly, the additional amount the Comelec needed to pay was
maintained (less the amount already paid when it purchased 920
units of PCOS machines with corresponding CCS for the special
elections in certain areas in the provinces of Basilan, Lanao del Sur
and Bulacan) subject to the warranties originally agreed upon in the
AES contract. The contract amount not only included that for the
contract of lease but also for the OTP. Hence, the competitive public
bidding conducted for the AES contract was sufficient. A new public
bidding would be a superfluity.
The Solicitor General himself clarified during the oral arguments that the
purchase price of the remaining PCOS machines stated in the assailed Deed
of Sale was the price stated in Article 4.3 of the AES contract. Therefore, the
said amount was already part of the original amount bidded upon in 2009 for
the AES contract which negates the need for another competitive
bidding.200 (Emphases supplied)
In stark contrast, the Extended Warranty Contract (Program 1 ), despite its
titular denomination, is actually a separate service contract for the repair and
refurbishment of the PCOS machines, to be accomplished within a five (5)-
month period. Since it extends no subsisting warranty, it is really no different
from a contract for the servicing of appliances, automobiles and the like, by
which a routine check-up and repairs, if need be, are made by the service
contractor. In other words, it is a distinct contract, founded upon a new offer
and a new consideration, and for which a new payment - as evinced by the
240,000,000.00 purchase price under Article 2 thereof - is needed. This
much is clear from one of the contract's "whereas clauses"201 which states
that the contract amount was a product of subsequent negotiations by the
parties:
WHEREAS, after negotiations by the parties, the Contract Amount was
reduced to Philippine Pesos Two Hundred Forty Million
(Php240,000,000.00), exclusive of VAT.202
In fact, if only to highlight its individuality, Smartmatic-TIM' s October 24,
2014 proposal reveals that the Extended Warranty Contract (Program 1) was
formulated as part of a full service program package, i.e., from bringing back
the PCOS machines to its working condition to the upgrading of the different
hardware and software components, that subsists on its own:203
V. Proposal Elements
The proposal consists of three major programs, which cover the various
elements which Smartmatic suggest are required to ensure the PCOS are in
peak condition for 2016.
The first program covers the extension of the warranty to bring the PCOS
back to working condition following a prolonged storage and lack of
preventive maintenance for over two years. The second program covers the
refurbishment of the machines to change physical components at the end of
life and as precautionary measures to eliminate potential risk. It also includes
the repair of machines through 2015, 2016 pre-election preparation and 2016
post-election repair, firmware upgrades to the MTD Modems and return to
storage preparation.
For the third program, Smartmatic has reviewed the requirements of the
current installed platform and identified a range of improvements to the
different hardware and software components of the solution to make it
equivalent of any technology available in the market today.
Hence, different from the character of the OTP, it would be absurd to
conclude that the Extended Warranty Contract (Program 1) was a mere
"warranty extension" that could masquerade as an adjunct of the 2009 AES
Contract if only to evade the procurement law. For the same reasons, it
cannot even pass as a mere amendment. Needless to state, the true nature
of every contract is ascertained through judicial determination, undergirded
by principles of law. It is never what the parties deem it to be.204
To stretch the argument further, neither should the principle of autonomy of
contracts preclude the Extended Warranty Contract's (Program 1) scrutiny.
The principle is not a safe haven to just leave the parties to their agreement -
it bears a sharp limitation that although parties may agree to stipulations,
clauses, terms and conditions as they may deem appropriate, they should
not be contrary to law, morals, good customs, public order or public
policy;205 hence, the Court, after ascertaining the contract's true nature,
should proceed to assess if it transgresses this limitation. Ironically, Capalla
itself exhorts that "[g]overnment contracts shall be void, as against the law
and public policy, where a statutory requirement of open competitive bidding
has been ignored. As a corollary, agreements directly tending to prevent
bidding for covered government contracts may violate public policy."206 The
exhortation holds true with respect to the Extended Warranty Contract
(Program 1), which is unquestionably a government contract imbued with
public interest.
As a final point, it is noteworthy that Capalla upheld the amendment of the
2009 AES Contract (i.e., the OTP's extension) since the OTP's exercise was,
in the Court's appreciation, more advantageous to the COMELEC and the
public. It was observed that the P?,191,484,739.48 rentals paid for the lease
of goods and purchase of services under the 2009 AES Contract was already
considered as part of the purchase price, and that for the COMELEC to own
the subject goods, it was required to pay only an additional
2,130,635,048.15. On the other hand, if the COMELEC did not exercise the
option, the rentals already paid would just be one of the government
expenses for the past election and, in effect, would be of no use to future
elections: Third. More importantly, the amendment of the AES contract is
more advantageous to the Comelec and the public.
xxxx
We agree with respondents that the exercise of the option is more
advantageous to the Comelec, because the 7,191,484,739.48 rentals paid
for the lease of goods and purchase of services under the AES contract was
considered part of the purchase price. For the Comelec to own the subject
goods, it was required to pay only 2,130,635,048.15. If the Comelec did not
exercise the option, the rentals already paid would just be one of the
government expenses for the past election and would be of no use to future
elections. Assuming that the exercise of the option is nullified, the Comelec
would again conduct another public bidding for the AES for the 2013
elections with its available budget of P-7 billion. Considering that the said
amount is the available fund for the whole election process, the amount for
the purchase or lease of new AES will definitely be less than 7 billion.
Moreover, it is possible that Smartmatic-TIM would again participate in the
public bidding and could win at a possibly higher price. The Comelec might
end up acquiring the same PCOS machines but now at a higher price.207
(Emphases and underscoring supplied)
The same cannot be said of the Extended Warranty Contract (Program 1)
whereby the COMELEC had agreed to pay a distinct purchase price of
240,000,000.00 in order to procure Smartmatic-TIM's services. In fact, it
appears that it would be more advantageous for the government if the
COMELEC's own in-house personnel had undertaken the diagnostics,
preventive maintenance, and even the actual repair and refurbishment of the
machines. It could have held Smartmatic-TIM to its training obligation under
Item No. 8.2.4, Part V of the RFP, as incorporated in the 2009 AES Contract,
as above-mentioned. If such were the case, then only the necessary tools
and replacement parts, after the COMELEC's own examination of the actual
number of defective machines and the extent of the defects, would be
needed to be procured. This course of action would seem to be cheaper than
the wholesale engagement of Smartmatic-TIM under the Extended Warranty
Contract (Program 1). But then again, the COMELEC's reasons as to why it
did not proceed as such can only be second-guessed.
At any rate, it is plainly unclear to this Court that the 240,000,000.00
purchase price gives the best price advantage to the government. The
COMELEC mentions in its Comment that the said price, coupled with the 4%
maximum replacement threshold, translates into the cost of P 131.26 per
PCOS machine for their inspection, diagnosis, and repair, including the cost
for the parts and components.208 However, as already pointed out, the
Court has not been assured that no other service contractor is capable of
providing more suitable terms to the government. And more so, the
COMELEC's perceived price advantage under the Smartmatic-TIM deal
assumes that all PCOS machines have to be repaired. This assumption may
very well end up to be false after the initial diagnostics of the PCOS
machines, again a course of action that the COMELEC should have
preliminarily taken. Therefore, as a worst case, the government may end up
shelling out 240,000,000.00 for the mere diagnostics and/or preventive
maintenance of the machines, if it turns out that no PCOS machine needs to
be repaired. The contingency of determining the extent of work to be
accomplished simply precludes an objective assessment of whatever price
advantage may be gained. That being said, the COMELEC's invocation of
Capalla is misplaced. VIII.
In an article published just recently, last March 30, 2015, COMELEC
spokesperson James Jimenez stated that the COMELEC can actually push
through with an automated elections for 2016, even not through the previous
PCOS route. Far from the distraught tenor of the COMELEC's submitted
pleadings, wherein it flustered over the catastrophic return to manual
elections if Resolution No. 9922 and the Extended Warranty Contract
(Program 1) would not hold, the spokesperson sensibly explains that it all
boils down to how the COMELEC marshals its own resources:
The Commission on Elections (COMELEC) is eyeing the use of other
computerized voting machines in the May 2016 elections should the
Supreme Court decide against reusing the precinct count optical scan
(PCOS) machines.
Comelec spokesman James Jimenez said the poll body is considering the
use of 23,000 optical mark reader (OMR) units.
"lf we push through with the bidding now, we will have 23,000 (OMR)
machines. So we can do it. It can be done. It's really just a question of how
you're going to marshal your resources," Jimenez said.
The Comelec earlier started the bidding for the OMR that will be used to
supplement the existing PCOS machines.
However, the possible reuse of the PCOS machines for the May 2016
elections is being questioned before the Supreme Court (SC).
Though fewer machines can be used if the high court rules against PCOS,
Jimenez said Comelec is still not giving up on computerized elections in
2016. The poll body had used less units in past automated elections
nationwide.
According to Jimenez, Comelec will adopt the Central Count Optical Scan
(CCOS) system if the OMR machines will be used.
He said the adoption of CCOS is already being discussed, including the
possible number of counting centers.
 x x x x209

The Court has not even gone to this extreme and prohibited the re-use of the
PCOS machines. Yet, the COMELEC's own spokesperson has conceded
that when push comes to shove, automated elections are still possible.

There are no qualms about the task of having the PCOS machines repaired
and refurbished. However, there are serious and unignorable legal flaws
about how the COMELEC intends to pursue this undertaking. Bluntly, the
COMELEC has failed to justify its reasons for directly contracting with
Smartmatic-TIM: it had not shown that any of the conditions under Section
50, Article XVI of the GPRA exists; its claims of impracticality were not
supported by independently verified and competent data; and lastly, its
perceived "warranty extension" is, in reality, just a circumvention of the
procurement law. For all these counts, the conclusion thus reached is that
the COMELEC had committed grave abuse of discretion amounting to lack or
excess of jurisdiction.210 As a result, its Resolution No. 9922 and the
Extended Warranty Contract (Program 1) should be stricken down, and
necessarily, all amounts paid to Smartmatic-TIM pursuant to the said
contract, if any, being public funds sourced from taxpayers' money, should
be returned to the government in accordance with the procedures contained
in existing rules and regulations. Note that the disposition of these cases
does not prohibit the COMELEC from resorting to direct contracting anew or
other alternative method of procurement with any service contractor, subject
to compliance with the conditions provided in the GPRA and all the pertinent
rules and procedures.1wphi1

While this Court recognizes that the COMELEC should be given sufficient
leeway in exercising its constitutional mandate to enforce and administer all
election laws, it demands equal recognition that it is the Court's constitutional
duty to see to it that all governmental actions are legally permissible. In so
doing, the Court decides not only with pragmatism in mind, but pragmatism
within the fair bounds of law. Such is the case in examining the COMELEC's
apprehensions under the lens of the procurement law, with heightened
considerations of public accountability and transparency put to the fore. With
due deference to the COMELEC, it should be made to understand that this
Court does not stand to thwart the conduct of automated elections; but only
steps in to preserve its sanctity. After all, in a democracy, nothing is more
vital than an unimpaired vote.

WHEREFORE, the petitions are GRANTED. Accordingly, COMELEC

Resolution No. 9922 and the Extended Warranty Contract (Program 1) are
hereby declared NULL and VOID. This Decision is immediately executory in
view of the time considerations attendant herein.211 SO ORDERED.
 [G.R. No. L-3521. December 13, 1949.]
THE NACIONALISTA PARTY ET AL., Petitioners, v. THE COMMISSION
ON ELECTIONS, Respondent.
Claro M. Recto, Manuel C. Briones, Jesus G. Barrera, J. Antonio
Araneta and Jesus P. Morfe, for Petitioners.
Vicente de Vera, Leopoldo Rovira and Rodrigo D. Perez Jr. for
Respondent.
SYLLABUS
1. COMMISSION ON ELECTIONS; NOT AUTHORIZED TO ANNUL
ELECTIONS. The power vested by the Constitution in the Commission on
Elections to enforce and administer all laws relative to the conduct of
elections and to insure free, orderly, honest elections does not include the
power to annul an election which may not have been free, orderly, and
honest. Such power is preventive only and not curative also; it is intended to
prevent any and all forms of election fraud or violation of the Election Law,
but it is fails to accomplish that purpose, it is not the Commission on
Elections that is charged with the duty to cure or remedy the resulting evil but
some other agencies of the Government.
2. ID.; ID.; SENATE ELECTORAL TRIBUNAL. Frauds or other
irregularities alleged to have been admitted in the election of senators involve
a senatorial election contest over which the Electoral Tribunal of the Senate,
and neither the Commission on Elections not the Supreme Court, has
jurisdiction in accordance with section 11 of Article VI of the Constitution.
3. ID.; AUTHORITY AS NATIONAL BOARD OF CANVASSERS. Section
166 of the Revised Election Code constitute the commission on Elections as
a national board of canvasser with respect to the election of senators. Such a
board is a ministerial body empowered only to accept as correct returns
transmitted to it which are in due from and to ascertain and declare the result
as it appears therefrom. Questions of illegal voting. However, it must satisfy
itself of the genuineness of the returns. Where the returns are obviously
manufactured, as where they show a great excess of votes over what could
legally have been cast, the board will not be compelled to canvass them.
4. SUPREME COURT; EXTENT OF ITS POWER TO REDRESS
GRIEVANCES, CIRCUMSCRIBED BY LAW. Anent petitioners plea to
vindicate the peoples right freely and honestly to elect their officers, alleged
to have been violated by the party in power, and thereby preserve
democracy in this country, the Court says: "We are not unmindful of the
grave political situation nor are we insensitive to petitioners vehement plea
for redress. At the same time, it must ever be borne in mind that we are not
omnipotent; our powers and jurisdiction are circumscribed by law, which we
cannot transcend. We cannot correct an alleged abuse of power on the part
of others by means of a similar abuse of our powers; we cannot and must not
assume the role of a dictator to forestall dictatorship; we cannot transcend
the law to foster the reign of law. Our duty is to dispense justice under the
law. We can only perform faithfully our assigned duty and expect others to
perform theirs. Constitutional government can be preserved and maintained
if every officer, who has sworn to preserved and defend the Constitution,
keeps his solemn oath faithfully."
DECISION
OZAETA, J.:
This is a petition for mandamus to compel the Commission on Elections to
exclude (not to count) the votes cast for senators in the provinces of Negros
Occidental and Lanao during the last elections in the canvass to be
performed by it pursuant to section 166 of the Revised Election Code. After
due hearing on December 9, 1949, we denied the petition. This opinion is
handed down to expound our decision.
The allegations of the petition which are admitted in respondents answer are
in substance as follows:chanrob1es virtual 1aw library
The petitioner Nacionalista Party is a national political party with official
candidates for all the offices involved in the last national elections, and the
other petitioners are the eight candidates for senators of said party. The
respondent Commission on Elections is an entity created by the Constitution
and charged with the duty of enforcing and administering all laws relative to
the conduct of elections, with the power to take proper measures to insure
free, orderly, and honest elections throughout the Philippines.
Several weeks before the holding of the last national elections, some of the
petitioners made representations to the respondent that in view of the state
of terrorism and political persecutions existing in the provinces of Negros
Occidental and Lanao against the persons of the candidates, leaders, and
sympathizers of the petitioners, intended to prevent the free expression of
the voters will in the national elections scheduled for November 8, 1949, and
considering the rampant violation of the Election Law which were committed
in said provinces to the prejudice of the petitioners during the two registration
days, consisting among others of the padding of the electoral census in many
of the municipal districts of Lanao, it had become impossible to hold free,
orderly, and honest elections in said provinces.
In view of said representations the respondent Commission, after considering
the evidence presented before it, approved a resolution on November 4,
1949, wherein it found in substance (1) that in Negros Occidental the
provincial governor, who was the political leader in that province of one of the
political parties (the Liberal Party), organized and fully armed special agents,
some of whom were irresponsible minors with no training in discipline; that
said agents, who owed loyalty to the provincial governor and followed blindly
the latters orders, arrested without warrants of arrest, threatened,
intimidated, and assaulted the political leaders and followers of the
opposition; that in some places the registration of the voters was made
without the presence of the opposition inspectors because of such
intimidation; that candidates and political leaders of the opposition had to
evacuate to Iloilo, Manila, and other places for security reasons; that under
the tense political situation in the province, the armed special agents headed
by the provincial governor had full control of the election in said province; and
that in the light of these facts the Commission believed that a clean, orderly,
and honest election could not be held in the province of Negros Occidental;
and (2) that in the province of Lanao, wholesale frauds were committed in the
1947 election consisting in the registration in various municipal districts of
thousands of fictitious voters; that in some municipal districts the number of
registered electors even exceeded the number of inhabitants; that what
happened in the 1947 election in Lanao was bound to be repeated in the
1949 election, in view of the fact that the election precincts where there was
fraudulent registration of voters were situated in distant places, the great
majority of them in jungles without any means of communication and beyond
the supervision of the representatives of the Commission on Elections. Upon
these findings the Commission recommended to the President of the
Philippines the postponement of the election in the entire province of Negros
Occidental and in various specified municipal districts of Lanao.
The President chose not to follow said recommendation, and did not suspend
the elections in the two provinces in question.
Petitioners further allege, but respondent denies, that the rampant terrorism
and irregularities mentioned in the resolution and recommendation of the
Commission on Elections "continued to exist during the last election
according to reports duly submitted before the respondent Commission on
Elections" ; that, consequently, the elections held in the provinces of Lanao
and Negros Occidental are null and void; and that therefore the votes cast
therein should not be counted.
During the hearing of this case we were informed by counsel for the
respondent that the petitioners had presented before the Commission on
Elections a petition, which that body had not yet resolved, seeking the
annulment, or exclusion from the canvass, of the votes cast for senators not
only in the provinces of Negros Occidental and Lanao but also in five other
provinces where, it is alleged, there had been no free, orderly, and honest
elections.
As the court of last resort we are now called upon to define and delimit the
powers of the Commission on Elections under the Constitution and the
Election Law. Specifically, the question to decide is whether the Commission
on Elections is empowered to annul an election in any political division or
subdivision because of alleged terrorism or fraud committed in connection
therewith.
During the oral argument counsel for the petitioners sought to impress upon
us the grave political crisis with which the nation is now confronted as a
result of the last elections, during which, it is denounced, the sovereign right
of the people freely and honestly to elect their officers was not respected but
brazenly violated in several provinces by the party in power; and that this
Tribunal, as the bulwark of the peoples right, is in duty bound to vindicate it
and preserve democracy in this country. We are not unmindful of the grave
political situation, nor are we insensitive to petitioners vehement plea for
redress. At the same time, it must ever be borne in mind that we are not
omnipotent; our powers and jurisdiction are circumscribed by law, which we
cannot transcend. We cannot correct an alleged abuse of power on the part
of others by means of a similar abuse of our own powers; we cannot and
must not assume the role of a dictator to forestall dictatorship; we cannot
transcend the law to foster the reign of law. Our duty is to dispense justice
under the law. We can only perform faithfully our assigned duty and expect
others to perform theirs. Constitutional government can be preserved and
maintained if every officer, who has sworn to preserve and defend the
Constitution, keeps his solemn oath faithfully.
It is in that consciousness that we now proceed to resolve the question
involved in this case.
Section 2 of Article X of the Constitution provides:jgc:chanrobles.com.ph
"The Commission on Elections shall have exclusive charge of the
enforcement and administration of all laws relative to the conduct of elections
and shall exercise all other functions which may be conferred upon it by law.
It shall decide, save those involving the right to vote, all administrative
questions, affecting elections, including the determination of the number and
location of polling places, and the appointment of election inspectors and
other election officials. All law-enforcement agencies and instrumentalities of
the Government, when so required by the Commission, shall act as its
deputies for the purpose of insuring free, orderly, and honest elections. The
decisions, orders, and rulings of the Commission shall be subject to review
by the Supreme Court."cralaw virtua1aw library
Supplementing and in a way implementing that constitutional provision are, in
so far as pertinent here, sections 8 and 166 of the Revised Election Code,
which read as follows:jgc:chanrobles.com.ph
"SEC. 8. Postponement of election. When for any serious cause the
holding of an election should become impossible in any political division or
subdivision, the President, upon recommendation of the Commission on
Elections, shall postpone the election therein for such time as he may deem
necessary.
"SEC. 166. Canvass of votes for President, Vice President and Senators.
Thirty days after the elections have been held, the Commission on Elections
shall meet in session and shall publicly count the votes cast for Senators.
The registered candidates in the number of Senators required to be elected
who obtained the highest number of votes shall be declared elected. A copy
of such statement shall be furnished to the Secretary of the Senate and to
each elected candidate."cralaw virtua1aw library
Germane to the above constitutional and statutory provisions is section 11 of
Article VI of the Constitution, which reads as follows:jgc:chanrobles.com.ph
"SEC. 11. The Senate and the House of Representatives shall each have an
Electoral Tribunal which shall be the sole judge of all contests relating to the
election, returns, and qualifications of their respective Members. Each
Electoral Tribunal shall be composed of nine Members, three of whom shall
be Justices of the Supreme Court to be designated by the Chief Justice, and
the remaining six shall be Members of the Senate or of the House of
Representatives, as the case may be, who shall be chosen by each House,
three upon nomination of the party having the largest number of votes and
three of the party having the second largest number of votes therein. The
senior Justice in each Electoral Tribunal shall be its Chairman."cralaw
virtua1aw library
What are the implications of the power vested in the Commission to enforce
and administer all laws relative to the conduct of elections and to insure free,
orderly, and honest elections? Does it include the power to annul an election
which may not have been free, orderly, and honest?
It seems clear from the context of the constitutional provision in question as
well as from other provisions already quoted above that such power is
preventive only and not curative also; that is to say, it is intended to prevent
any and all forms of election fraud or violation of the Election Law, but if it
fails to accomplish that purpose, it is not the Commission on Elections that is
charged with the duty to cure or remedy the resulting evil but some other
agencies of the Government. We note from the text that the power to decide
questions involving the right to vote is expressly withheld from the
Commission although the right to vote is provided in the Election Law, the
enforcement and administration of which is placed in the exclusive charge of
the Commission. Parallel to the withholding of such power from the
Commission is the vesting in other agencies of the more inclusive power to
decide all contests relating to the election, returns, and qualifications of the
members of Congress, namely, the Electoral Tribunal of the Senate in the
case of the senators and the Electoral Tribunal of the House of
Representatives in the case of the members of the latter. Election contests
involving provincial and municipal officials are entrusted to the courts.
(Sections 172 et seq., Revised Election Code.) The power to decide election
contests necessarily includes the power to determine the validity or nullity of
the votes questioned by either of the contestants.
Thus, in so far as contests relating to the election of senators and
representatives are concerned, not even this court is empowered to
intervene.
At bottom this case involves a senatorial election contest insofar as the
petitioners who are candidates for senators of the Nacionalista Party seek to
exclude or annul the votes cast for senators during the last elections in
Negros Occidental and Lanao, with the notorious defect that the opposing
candidates have not been impleaded. At this stage the obvious intent of the
petitioners is to avoid, if possible, the necessity on their part of filing an
election protest before the Electoral Tribunal of the Senate. But as we
construe the pertinent provisions of the Constitution and of the Election Law,
neither the Commission on Elections nor this court is empowered to forestall
and much less decide the impending contest. The jurisdiction over such case
is expressly and exclusively vested by the Constitution in the Electoral
Tribunal of the Senate. Implementing the constitutional mandate on the
subject, section 182 of the Revised Election Code
provides:jgc:chanrobles.com.ph
"In contests under their respective jurisdiction, the Electoral Tribunals of the
Senate and the House of Representatives shall have and exercise the same
powers which the law confers upon the courts, including that of summarily
punishing contempts, ordering the taking of depositions, the arrests of
witnesses for the purpose of compelling their appearances and the
production of documents and other evidence, and the compulsory payment
of costs and expenses which it may have assessed against the parties and
their bondsmen; of giving notices of its decisions, resolutions, and orders and
enforcing them through the officials charged with the enforcement of judicial
orders; and of making the necessary rules for the effective performance of
their constitutional functions. All the expenses of the said Tribunals and of
their respective members shall be paid from the funds of the House of
Congress to which each Tribunal pertains, and their telegrams and corporation, board, or person unlawfully neglects the performance of an act
correspondence shall be transmitted free of charge."cralaw virtua1aw library which the law specifically enjoins as a duty resulting from an office, trust, or
station, or unlawfully excludes another from the use and enjoyment of a right
Section 166 of the Revised Election Code hereinabove quoted constitutes or office to which such other is entitled, and there is no other plain, speedy,
the Commission on Elections as a national board of canvassers with respect and adequate remedy in the ordinary course of law." (Section 3, Rule 67.)
to the election of senators, who under section 2 of Article VI of the We have seen that it is not the duty of the Commission on Elections to pass
Constitution are chosen at large by the qualified electors of the Philippines. In upon the legality of an election alleged to have been tainted with fraud,
the absence of any provision in the law making the members of a canvassing intimidation, or other violation of the Election Law. On the contrary, it is its
board judges of the election and giving them full power and authority to ministerial duty to count the votes appearing in the election returns after
approve thereof or set it aside and order a new election, "such a board is satisfying itself of the genuineness of said returns. What in effect the
considered to be merely a ministerial body, which is empowered only to petitioners seek is to require the respondent to desist from performing a
accept as correct returns transmitted to it, which are in due form, and to ministerial duty.
ascertain and declare the result as it appears therefrom. Questions of illegal
voting and fraudulent practices are passed on by another tribunal. The The petition is denied, with costs against the petitioners.
canvassers are to be satisfied of the genuineness of the returns namely,
that the papers presented to them are not forged and spurious, that they are
returns, and that they are signed by the proper officers. When so satisfied,
however, they may not reject any returns because of informalities in them or
because of illegal and fraudulent practices in the election. . . . Where the
returns are obviously manufactured, as where they show a great excess of
votes over what could legally have been cast, the board will not be compelled
to canvass them." (18 Am. Jur., Elections, sec. 254, pp. 346-348.)

It is contended for the petitioners that since the respondent Commission itself
had recommended to the President the postponement of the election in the
whole province of Negros Occidental and in certain specified municipal
districts of Lanao because it was deemed impossible to hold a free, orderly,
and honest election therein, the respondent Commission should be ordered
to consider null and exclude the votes cast for senators in the election held in
said provinces.

We do not deem it proper for us to determine the legal effect of the

Commissions recommendation to the President to postpone the election in
said provinces; that is to say, whether or not it was mandatory on the
President to follow said recommendation and, in the affirmative case,
whether the failure of the President to do so would render void the election in
those places. Under the Constitution, "questions of illegal voting and
fraudulent practices are passed on by another tribunal," the Electoral
Tribunal of the Senate. Such questions will in all probability be raised before
said tribunal at the proper time, and we must not prejudge an issue over
which we have no jurisdiction. Whether the votes for senators in Negros
Occidental and Lanao are valid or invalid is a question which neither the
Commission on Elections nor this court is empowered to decide.

Upon the facts and the law as above expounded, we have no authority to
grant the remedy prayed for. The writ of mandamus lies "when any tribunal,
G.R. No. 88919 July 25, 1990
PEOPLE OF THE PHILIPPINES, petitioner,
vs.
HONORABLE ENRIQUE B. INTING, PRESIDING JUDGE, REGIONAL
TRIAL COURT, BRANCH 38, DUMAGUETE CITY, AND OIC MAYOR
DOMINADOR S. REGALADO, JR., respondents.
GUTIERREZ, JR., J.:
Does a preliminary investigation conducted by a Provincial Election
Supervisor involving election offenses have to be coursed through the
Provincial Fiscal now Provincial Prosecutor, before the Regional Trial Court
may take cognizance of the investigation and determine whether or not
probable cause exists?
On February 6, 1988, Mrs. Editha Barba filed a letter-complaint against OIC-
Mayor Dominador Regalado of Tanjay, Negros Oriental with the Commission
on Elections (COMELEC), for allegedly transferring her, a permanent
Nursing Attendant, Grade I, in the office of the Municipal Mayor to a very
remote barangay and without obtaining prior permission or clearance from
COMELEC as required by law.
Acting on the complaint, COMELEC directed Atty. Gerardo Lituanas,
Provincial Election Supervisor of Dumaguete City: (1) to conduct the
preliminary investigation of the case; (2) to prepare and file the necessary
information in court; (3) to handle the prosecution if the evidence submitted
shows a prima facie case and (3) to issue a resolution of prosecution or
dismissal as the case may be. The directive to conduct the preliminary
investigation was pursuant to COMELEC Resolution No. 1752 dated January
14, 1986. The resolution, in turn, is based on the constitutional mandate that
the COMELEC is charged with the enforcement and administration of all laws
relative to the conduct of elections for the purpose of ensuring free, orderly
and honest elections (sec. 2, Article XII-C of the 1973 Constitution) and on
the Omnibus Election Code which implements the constitutional provision.
The Resolution provides, among others:
xxx xxx xxx
Further, Regional Election Directors and Provincial Election
Supervisors are hereby authorized to conduct preliminary
investigations of election offenses committed in their
respective jurisdictions, file the corresponding complaints
and/or informations in court whenever warranted, and to
prosecute the same pursuant to Section 265 of the Omnibus
Election Code. (Rollo, p. 15)
After a preliminary investigation of Barba's complaint, Atty. Lituanas found a
prima facie case. Hence, on September 26, 1988, he filed with the
respondent trial court a criminal case for violation of section 261, Par. (h),
Omnibus Election Code against the OIC-Mayor.
In an Order dated September 30, 1988, the respondent court issued a
warrant of arrest against the accused OIC Mayor. It also fixed the bail at five
thousand pesos (P5,000.00) as recommended by the Provincial Election
Supervisor.
However, in an order dated October 3, 1988 and before the accused could
be arrested, the trial court set aside its September 30, 1988 order on the
ground that Atty. Lituanas is not authorized to determine probable cause
pursuant to Section 2, Article III of the 1987 Constitution. The court stated
that it "will give due course to the information filed in this case if the same
has the written approval of the Provincial Fiscal after which the prosecution
of the case shall be under the supervision and control of the latter." (at p. 23,
Rollo, emphasis supplied)
In another order dated November 22, 1988, the court gave Atty. Lituanas
fifteen (15) days from receipt to file another information charging the same
offense with the written approval of the Provincial Fiscal.
Atty. Lituanas failed to comply with the order. Hence, in an order dated
December 8, 1988, the trial court quashed the information. A motion for
reconsideration was denied.
Hence, this petition.
The respondent trial court justifies its stand on the ground that the
COMELEC through its Provincial Election Supervisor lacks jurisdiction to
determine the existence of probable cause in an election offense which it
seeks to prosecute in court because:
While under Section 265 of the Omnibus Election Code
approved on December 3, 1985 duly authorized legal
officers of the Commission on Elections have the exclusive
power to conduct preliminary investigation of all election
offenses and to prosecute the same, it is doubtful whether
said authority under the auspices of the 1973 Constitution,
still subsists under the 1987 Constitution which has deleted
 in its Section 2, Article III, the phrase "and such other
responsible officer as may be authorized by law" in the
equivalent section and article of the 1973 Constitution.
(Rollo, p. 24)
The petition is impressed with merit.
We emphasize important features of the constitutional mandate that " ... no
search warrant or warrant of arrest shall issue except upon probable cause
to be determined personally by the judge ... " (Article III, Section 2,
Constitution)
First, the determination of probable cause is a function of the Judge. It is not
for the Provincial Fiscal or Prosecutor nor for the Election Supervisor to
ascertain. Only the Judge and the Judge alone makes this determination.
Second, the preliminary inquiry made by a Prosecutor does not bind the
Judge. It merely assists him to make the determination of probable cause.
The Judge does not have to follow what the Prosecutor presents to him. By
itself, the Prosecutor's certification of probable cause is ineffectual. It is the
report, the affidavits, the transcripts of stenographic notes (if any), and all
other supporting documents behind the Prosecutor's certification which are
material in assisting the Judge to make his determination.
And third, Judges and Prosecutors alike should distinguish the preliminary
inquiry which determines probable cause for the issuance of a warrant of
arrest from the preliminary investigation proper which ascertains whether the
offender should be held for trial or released. Even if the two inquiries are
conducted in the course of one and the same proceeding, there should be no
confusion about the objectives. The determination of probable cause for the
warrant of arrest is made by the Judge. The preliminary investigation proper-
whether or not there is reasonable ground to believe that the accused is
guilty of the offense charged and, therefore, whether or not he should be
subjected to the expense, rigors and embarrassment of trial is the function of
the Prosecutor.
The Court made this clear in the case of Castillo v. Villaluz (171 SCRA 39
[1989]):
Judges of Regional Trial Courts (formerly Courts of First
Instance) no longer have authority to conduct preliminary
investigations. That authority, at one time reposed in them
under Sections 13, 14 and 16 Rule 112 of the Rules of Court
of 1964, (See Sec. 4, Rule 108, Rules of Court of 1940;
People v. Solon, 47 Phil. 443, cited in Moran, Comments on
the Rules, 1980 ed., Vol. 4, pp. 115-116) was removed from
them by the 1985 Rules on Criminal Procedure, effective on
January 1, 1985, (Promulgated on November 11, 1984)
which deleted all provisions granting that power to said
Judges. We had occasion to point this out in Salta v. Court
of Appeals, 143 SCRA 228, and to stress as well certain
other basic propositions, namely: (1) that the conduct of a
preliminary investigation is "not a judicial function ... (but)
part of the prosecution's job, a function of the executive," (2)
that wherever "there are enough fiscals or prosecutors to
conduct preliminary investigations, courts are counseled to
leave this job which is essentially executive to them," and the
fact "that a certain power is granted does not necessarily
mean that it should be indiscriminately exercised."
The 1988 Amendments to the 1985 Rules on Criminal
Procedure, declared effective on October 1, 1988, (The 1988
Amendments were published in the issue of Bulletin Today
of October 29, 1988) did not restore that authority to Judges
of Regional Trial Courts; said amendments did not in fact
deal at all with the officers or courts having authority to
conduct preliminary investigations.
This is not to say, however, that somewhere along the line
RTC Judges also lost the power to make a preliminary
examination for the purpose of determining whether
probable cause exists to justify the issuance of a warrant of
arrest (or search warrant). Such a power indeed, it is as
much a duty as it is a power has been and remains
vested in every judge by the provision in the Bill of Rights in
the 1935, the 1973 and the present (1987) Constitutions
securing the people against unreasonable searches and
seizures, thereby placing it beyond the competence of mere
Court rule or statute to revoke. The distinction must,
therefore, be made clear while an RTC Judge may no longer
conduct preliminary investigations to ascertain whether there
is sufficient ground for the filing of a criminal complaint or
information, he retains the authority, when such a pleading is
filed with his court, to determine whether there is probable
cause justifying the issuance of a warrant of arrest. It might
be added that this distinction accords, rather than conflicts,
with the rationale of Salta because both law and rule, in
restricting to judges the authority to order arrest, recognize
that function to be judicial in nature.
We reiterate that preliminary investigation should be distinguished as to
whether it is an investigation for the determination of a sufficient ground for
the filing of the information or it is an investigation for the determination of a
probable cause for the issuance of a warrant of arrest. The first kind of
preliminary investigation is executive in nature. It is part of the prosecution's
job. The second kind of preliminary investigation which is more properly
called preliminary examination is judicial in nature and is lodged with the
judge. It is in this context that we address the issue raised in the instant
petition so as to give meaning to the constitutional power vested in the
COMELEC regarding election offenses.
Article IX C Section 2 of the Constitution provides:
Sec. 2. The Commission on Elections shall exercise the
following powers and functions
(1) Enforce and administer all laws and regulations relative
to the conduct of an election, plebiscite, initiative,
referendum, and recall.
xxx xxx xxx
(6) File, upon a verified complaint, or on its own initiative,
petitions in court for inclusion or exclusion of votes,
investigate and, where appropriate, prosecute cases of
violation of election laws, including acts or omission
constituting election frauds, offenses, and practices.
(Emphasis supplied)
In effect the 1987 Constitution mandates the COMELEC not only to
investigate but also to prosecute cases of violation of election laws. This
means that the COMELEC is empowered to conduct preliminary
investigations in cases involving election offenses for the purpose of helping
the Judge determine probable cause and for filing an information in court.
This power is exclusive with COMELEC.
The grant to the COMELEC of the power, among others, to
enforce and administer all laws relative to the conduct of
election and the concomittant authority to investigate and
prosecute election offenses is not without compelling reason.
The evident constitutional intendment in bestowing this
power to the COMELEC is to insure the free, orderly and
honest conduct of elections, failure of which would result in
the frustration of the true will of the people and make a mere
idle ceremony of the sacred right and duty of every qualified
citizen to vote. To divest the COMELEC of the authority to
investigate and prosecute offenses committed by public
officials in relation to their office would thus seriously impair
its effectiveness in achieving this clear constitutional
mandate.
From a careful scrutiny of the constitutional provisions relied
upon by the Sandiganbayan, We perceived neither explicit
nor implicit grant to it and its prosecuting arm, the
Tanodbayan, of the authority to investigate, prosecute and
hear election offenses committed by public officers in
relation to their office as contradistinguished from the clear
and categorical bestowal of said authority and jurisdiction
upon the COMELEC and the courts of first instance under
Sections 182 and 184, respectively, of the Election Code of
1978.
An examination of the provisions of the Constitution and the
Election Code of 1978 reveals the clear intention to place in
the COMELEC exclusive jurisdiction to investigate and
prosecute election offenses committed by any person,
whether private individual or public officer or employee, and
in the latter instance, irrespective of whether the offense is
committed in relation to his official duties or not. In other
words, it is the nature of the offense and not the personality
of the offender that matters. As long as the offense is an
election offense jurisdiction over the same rests exclusively
with the COMELEC, in view of its all-embracing power over
the conduct of elections. (Corpus v. Tanodbayan, 149 SCRA
281 [1987])
Hence, the Provincial Fiscal, as such, assumes no role in the prosecution of
election offenses. If the Fiscal or Prosecutor files an information charging an
election offense or prosecutes a violation of election law, it is because he has
been deputized by the COMELEC. He does not do so under the sole
authority of his office. (People v. Basilla, et al., G.R. Nos. 83938-40,
November 6, 1989).itc-asl In the instant case, there is no averment or
allegation that the respondent Judge is bringing in the Provincial Fiscal as a
deputy of COMELEC. He wants the Fiscal to "approve" the COMELEC's
preliminary investigation.
It is to be noted that on February 27, 1987 (when the 1987 Constitution was
already in effect) the President issued Executive Order No. 134 which was
the ENABLING ACT FOR ELECTIONS FOR MEMBERS OF CONGRESS
ON MAY 11, 1987 AND FOR OTHER PURPOSES." Section 11 thereof
provides:
 Prosecution. The Commission shall, through its duly September 30, 1988 is REINSTATED. The respondent court is ordered to
authorized legal officers, have exclusive power to conduct proceed hearing the case with deliberate speed until its termination.
preliminary investigation of all election offenses punishable
as provided for in the preceding section, and to prosecute SO ORDERED.
the same: Provided, That in the event that the Commission
fails to act on any complaint within two (2) months from filing,
the complainant may file the complaint with the Office of the
Fiscal or with the Department of Justice for proper
investigation and prosecution, if warranted.

The Commission may avail of the assistance of other

prosecuting arms of the government.

It is only after a preliminary examination conducted by the COMELEC

through its officials or its deputies that section 2, Article III of the 1987
Constitution comes in. This is so, because, when the application for a
warrant of arrest is made and the information is filed with the court, the judge
will then determine whether or not a probable cause exists for the issuance
of a warrant of arrest.

Bearing these principles in mind, it is apparant that the respondent trial court
misconstrued the constitutional provision when it quashed the information
filed by the Provincial Election Supervisor. As indicated above what the
respondent trial court should have done was to enforce its September 30,
1988 order, to wit:

Pursuant to Circular No. 12 of the Chief Justice of the

Supreme Court dated June 30, 1987 and considering that
after a personal examination of the evidence submitted by
the investigating Provincial Election Supervisor III Negros
Oriental (Designated Legal Officer), there is reasonable
ground for this Court to rely on the certification of said
Provincial Election Supervisor III in the information that a
probable cause exists, let a warrant issue for the arrest of
the accused filing the bail at FIVE THOUSAND (P5,000.00)
PESOS as recommended by the Provincial Election
Supervisor III.

The order to get the approval of the Provincial Fiscal is not only superfluous
but unwarranted.

WHEREFORE, the instant petition is GRANTED. The questioned Orders

dated October 3, 1988, November 22, 1988 and December 8, 1988 are
REVERSED and SET ASIDE. The respondent trial court's Order dated
G.R. No. 102653 March 5, 1992
NATIONAL PRESS CLUB, petitioner,
vs.
COMMISSION ON ELECTIONS, respondent.
G.R. No. 102925 March 5, 1992
PHILIPPINE PRESS INSTITUTE represented by ZOILO DEJARESCO,
JR., as its Past Chairman and President, and FRAULIN A. PEASALES
as its Corporate Secretary, petitioners,
vs.
COMMISSION ON ELECTIONS, represented by HON. CHRISTIAN
MONSOD, its Chairman; HON. GUILLERMO CARAGUE and HON.
ROSALINA S. CAJUCOM, respondents.
G.R. No. 102983 March 5, 1992
KAPISANAN NG MGA BRODKASTERS SA PILIPINAS; MAKATI
BROADCASTING NETWORK; MOLAVE BROADCASTING NETWORK;
MASBATE COMMUNITY BROADCASTING CO., INC., RADIO MINDANAO
NETWORK, INC.; ABS-CBN BROADCASTING CORP.; FILIPINAS
BROADCASTING; RADIO PILIPINO CORP.; RADIO PHILIPPINES
NETWORK, INC.; EAGLE BROADCASTING CORP.; MAGILIW
COMMUNITY BROADCASTING CO., INC.; for themselves and in behalf
of the mass media owners as a class; ANDRE S. KHAN; ARCADIO M.
CARANDANG, JR.; MALOU ESPINOSA MANALASTAS; MIGUEL C.
ENRIQUEZ; JOSE ANTONIO K. VELOSO; DIANA G. DE GUZMAN; JOSE
E. ESCANER, JR.; RAY G. PEDROCHE; PETER A. LAGUSAY; ROBERT
ESTRELLA; ROLANDO RAMIREZ; for themselves as voters and in
behalf of the Philippine electorate as a class; ORLANDO S. MERCADO
and ALEJANDRO de G. RODRIGUEZ; for themselves as prospective
candidates and in behalf of all candidates in the May 1992 election as a
class, petitioners,
vs.
COMMISSION ON ELECTIONS, respondent.
FELICIANO, J.:
In the three (3) consolidated Petitions before us, the common question raised
by petitioners is the constitutionality of Section 11 (b) of Republic Act No.
6646.
Petitioners in these cases consist of representatives of the mass media
which are prevented from selling or donating space and time for political
advertisements; two (2) individuals who are candidates for office (one for
national and the other for provincial office) in the coming May 1992 elections;
and taxpayers and voters who claim that their right to be informed of election
issues and of credentials of the candidates is being curtailed.
It is principally argued by petitioners that Section 11 (b) of Republic Act No.
6646 invades and violates the constitutional guarantees comprising freedom
of expression. Petitioners maintain that the prohibition imposed by Section 11
(b) amounts to censorship, because it selects and singles out for suppression
and repression with criminal sanctions, only publications of a particular
content, namely, media-based election or political propaganda during the
election period of 1992. It is asserted that the prohibition is in derogation of
media's role, function and duty to provide adequate channels of public
information and public opinion relevant to election issues. Further, petitioners
contend that Section 11 (b) abridges the freedom of speech of candidates,
and that the suppression of media-based campaign or political propaganda
except those appearing in the Comelec space of the newspapers and on
Comelec time of radio and television broadcasts, would bring about a
substantial reduction in the quantity or volume of information concerning
candidates and issues in the election thereby curtailing and limiting the right
of voters to information and opinion.
The statutory text that petitioners ask us to strike down as unconstitutional is
that of Section 11 (b) of Republic Act No. 6646, known as the Electoral
Reforms Law of 1987:
Sec. 11 Prohibited Forms of Election Propaganda. In
addition to the forms of election propaganda prohibited
under Section 85 of Batas Pambansa Blg. 881, it shall be
unlawful;
xxx xxx xxx
b) for any newspapers, radio broadcasting or television
station, other mass media, or any person making use of the
mass media to sell or to give free of charge print space or air
time for campaign or other political purposes except to the
Commission as provided under Sections 90 and 92 of Batas
Pambansa Blg. 881. Any mass media columnist,
commentator, announcer or personality who is a candidate
for any elective public office shall take a leave of absence
from his work as such during the campaign period.
(Emphasis supplied)
Section 11 (b) of Republic Act No. 6646 should be taken together with
Sections 90 and 92 of B.P. Blg. 881, known as the Omnibus Election Code of
the Philippines, which provide respectively as follows:
Sec. 90. Comelec space. The Commission shall procure
space in at least one newspaper of general circulation in
every province or city: Provided, however, That in the
absence of said newspaper, publication shall be done in any
other magazine or periodical in said province or city, which
shall be known as "Comelec Space" wherein candidates can
announce their candidacy. Said space shall be allocated,
free of charge, equally and impartially by the Commission
among all candidates within the area in which the newspaper
is circulated.
xxx xxx xxx
Sec. 92. Comelec time. The Commission shall procure
radio and television time to be known as "Comelec Time"
which shall be allocated equally and impartially among the
candidates within the area of coverage of all radio and
television stations. For this purpose, the franchise of all radio
broadcasting and television stations are hereby amended so
as to provide radio or television time, free of charge, during
the period of the campaign. (Emphasis supplied)
The objective which animates Section 11 (b) is the equalizing, as far as
practicable, the situations of rich and poor candidates by preventing the
former from enjoying the undue advantage offered by huge campaign "war
chests." Section 11 (b) prohibits the sale or donation of print space and air
time "for campaign or other political purposes" except to the Commission on
Elections ("Comelec"). Upon the other hand, Sections 90 and 92 of the
Omnibus Election Code require the Comelec to procure "Comelec space" in
newspapers of general circulation in every province or city and "Comelec
time" on radio and television stations. Further, the Comelec is statutorily
commanded to allocate "Comelec space" and "Comelec time" on a free of
charge, equal and impartial basis among all candidates within the area
served by the newspaper or radio and television station involved.
No one seriously disputes the legitimacy or the importance of the objective
sought to be secured by Section 11 (b) (of Republic Act No. 6646) in relation
to Sections 90 and 92 (of the Omnibus Election Code). That objective is of
special importance and urgency in a country which, like ours, is
characterized by extreme disparity in income distribution between the
economic elite and the rest of society, and by the prevalence of poverty, with
the bulk of our population falling below that "poverty line." It is supremely
important, however, to note that objective is not only a concededly legitimate
one; it has also been given constitutional status by the terms of Article IX(C)
(4) of the 1987 Constitution which provides as follows:
Sec. 4. The Commission [on Elections] may, during the
election period, 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 concessions granted by the Government or any
subdivision, agency, or instrumentality thereof, including any
government-owned or controlled corporation or its
subsidiary. 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. (Emphasis supplied)
The Comelec has thus been expressly authorized by the Constitution to
supervise or regulate the enjoyment or utilization of the franchises or permits
for the operation of media of communication and information. The
fundamental purpose of such "supervision or regulation" has been spelled
out in the Constitution as the ensuring of "equal opportunity, time, and space,
and the right to reply," as well as uniform and reasonable rates of charges for
the use of such media facilities, in connection with "public information
campaigns and forums among candidates." 1
It seems a modest proposition that the provision of the Bill of Rights which
enshrines freedom of speech, freedom of expression and freedom of the
press (Article III [4], Constitution) has to be taken in conjunction with Article
IX (C) (4) which may be seen to be a special provision applicable during a
specific limited period i.e., "during the election period." It is difficult to
overemphasize the special importance of the rights of freedom of speech and
freedom of the press in a democratic polity, in particular when they relate to
the purity and integrity of the electoral process itself, the process by which
the people identify those who shall have governance over them. Thus, it is
frequently said that these rights are accorded a preferred status in our
constitutional hierarchy. Withal, the rights of free speech and free press are
not unlimited rights for they are not the only important and relevant values
even in the most democratic of polities. In our own society, equality of
opportunity to proffer oneself for public office, without regard to the level of
financial resources that one may have at one's disposal, is clearly an
important value. One of the basic state policies given constitutional rank by
Article II, Section 26 of the Constitution is the egalitarian demand that "the
State shall guarantee equal access to opportunities for public service and
prohibit political dynasties as may be defined by law." 2
The technical effect of Article IX (C) (4) of the Constitution may be seen to be
that no presumption of invalidity arises in respect of exercises of supervisory
or regulatory authority on the part of the Comelec for the purpose of securing
equal opportunity among candidates for political office, although such
supervision or regulation may result in some limitation of the rights of free
speech and free press. For supervision or regulation of the operations of
media enterprises is scarcely conceivable without such accompanying
limitation. Thus, the applicable rule is the general, time-honored one that a
statute is presumed to be constitutional and that the party asserting its
unconstitutionality must discharge the burden of clearly and convincingly
proving that assertion. 3
Put in slightly different terms, there appears no present necessity to fall back
upon basic principles relating to the police power of the State and the
requisites for constitutionally valid exercise of that power. The essential
question is whether or not the assailed legislative or administrative provisions
constitute a permissible exercise of the power of supervision or regulation of
the operations of communication and information enterprises during an
election period, or whether such act has gone beyond permissible
supervision or regulation of media operations so as to constitute
unconstitutional repression of freedom of speech and freedom of the press.
The Court considers that Section 11 (b) has not gone outside the permissible
bounds of supervision or regulation of media operations during election
periods.
In the constitutional assaying of legislative provisions like Section 11 (b), the
character and extent of the limitations resulting from the particular measure
being assayed upon freedom of speech and freedom of the press are
essential considerations. It is important to note that the restrictive impact
upon freedom of speech and freedom of the press of Section 11 (b) is
circumscribed by certain important limitations.
Firstly, Section 11 (b) is limited in the duration of its applicability and
enforceability. By virtue of the operation of Article IX (C) (4) of the
Constitution, Section 11 (b) is limited in its applicability in time to election
periods. By its Resolution No. 2328 dated 2 January 1992, the Comelec,
acting under another specific grant of authority by the Constitution (Article IX
[C] [9]), has defined the period from 12 January 1992 until 10 June 1992 as
the relevant election period.
Secondly, and more importantly, Section 11 (b) is limited in its scope of
application. Analysis of Section 11 (b) shows that it purports to apply only to
the purchase and sale, including purchase and sale disguised as a donation,
4 of print space and air time for "campaign or other political purposes."
Section 11 (b) does not purport in any way to restrict the reporting by
newspapers or radio or television stations of news or news-worthy events
relating to candidates, their qualifications, political parties and programs of
government. Moreover, Section 11 (b) does not reach commentaries and
expressions of belief or opinion by reporters or broadcasters or editors or
commentators or columnists in respect of candidates, their qualifications, and
programs and so forth, so long at least as such comments, opinions and
beliefs are not in fact advertisements for particular candidates covertly paid
for. In sum, Section 11 (b) is not to be read as reaching any report or
commentary other coverage that, in responsible media, is not paid for by
candidates for political office. We read Section 11 (b) as designed to cover
only paid political advertisements of particular candidates.
The above limitation in scope of application of Section 11 (b) that it does
not restrict either the reporting of or the expression of belief or opinion or
comment upon the qualifications and programs and activities of any and all
candidates for office constitutes the critical distinction which must be
made between the instant case and that of Sanidad v. Commission on
Elections.5 In Sanidad, the Court declared unconstitutional Section 19 of
Comelec Resolution No. 2167 which provided as follows:
Sec. 19. Prohibition on Columnists, Commentators or
Announcers During the plebiscite campaign period, on the
day before and on plebiscite day, no mass media columnist,
commentator, announcer or personality shall use his column
or radio or television time to campaign for or against the
plebiscite issues.
Resolution No. 2167 had been promulgated by the Comelec in connection
with the plebiscite mandated by R.A. No. 6766 on the ratification or adoption
of the Organic Act for the Cordillera Autonomous Region. The Court held that
Resolution No. 2167 constituted a restriction of the freedom of expression of
petitioner Sanidad, a newspaper columnist of the Baguio Midland Courier,
"for no justifiable reason." The Court, through Medialdea, J., said:
. . . [N]either Article, IX-C of the Constitution nor Section 11
[b], 2nd par. of R.A. 6646 can be construed to mean that the
Comelec has also been granted the right to supervise and
regulate the exercise by media practitioners themselves of
their right to expression during plebiscite periods. Media
practitioners exercising their freedom of expression during
plebiscite periods are neither the franchise holders nor the
candidates. In fact, there are no candidates involved in the
plebiscite. Therefore, Section 19 of Comelec Resolution No.
 2167 has no statutory basis." 6 (Emphasis partly in the
original and partly supplied)
There is a third limitation upon the scope of application of Section 11 (b).
Section 11 (b) exempts from its prohibition the purchase by or donation to the
Comelec of print space or air time, which space and time Comelec is then
affirmatively required to allocate on a fair and equal basis, free of charge,
among the individual candidates for elective public offices in the province or
city served by the newspaper or radio or television station. Some of the
petitioners are apparently apprehensive that Comelec might not allocate
"Comelec time" or "Comelec space" on a fair and equal basis among the
several candidates. Should such apprehensions materialize, candidates who
are in fact prejudiced by unequal or unfair allocations effected by Comelec
will have appropriate judicial remedies available, so long at least as this
Court sits. Until such time, however, the Comelec is entitled to the benefit of
the presumption that official duty will be or is being regularly carried out. It
seems appropriate here to recall what Justice Laurel taught in Angara v.
Electoral Commission7 that the possibility of abuse is no argument against
the concession of the power or authority involved, for there is no power or
authority in human society that is not susceptible of being abused. Should it
be objected that the Comelec might refrain from procuring "Comelec time"
and "Comelec space," much the same considerations should be borne in
mind. As earlier noted, the Comelec is commanded by statute to buy or
"procure" "Comelec time" and "Comelec space" in mass media, and it must
be presumed that Comelec will carry out that statutory duty in this
connection, and if it does fail to do so, once again, the candidate or
candidates who feel aggrieved have judicial remedies at their disposal.
The points that may appropriately be underscored are that Section 11 (b)
does not cut off the flow of media reporting, opinion or commentary about
candidates, their qualifications and platforms and promises. Newspaper,
radio broadcasting and television stations remain quite free to carry out their
regular and normal information and communication operations. Section 11
(b) does not authorize any intervention and much less control on the part of
Comelec in respect of the content of the normal operations of media, nor in
respect of the content of political advertisements which the individual
candidates are quite free to present within their respective allocated Comelec
time and Comelec space. There is here no "officious functionary of [a]
repressive government" dictating what events or ideas reporters,
broadcasters, editors or commentators may talk or write about or display on
TV screens. There is here no censorship, whether disguised or otherwise.
What Section 11 (b), viewed in context, in fact does is to limit paid partisan
political advertisements to for a other than modern mass media, and to
"Comelec time" and "Comelec space" in such mass media.
Section 11 (b) does, of course, limit the right of free speech and of access to
mass media of the candidates themselves. The limitation, however, bears a
clear and reasonable connection with the constitutional objective set out in
Article IX(C) (4) and Article II (26) of the Constitution. For it is precisely in the
unlimited purchase of print space and radio and television time that the
resources of the financially affluent candidates are likely to make a crucial
difference. Here lies the core problem of equalization of the situations of the
candidates with deep pockets and the candidates with shallow or empty
pockets that Article IX(C) (4) of the Constitution and Section 11 (b) seek to
address. That the statutory mechanism which Section 11 (b) brings into
operation is designed and may be expected to bring about or promote equal
opportunity, and equal time and space, for political candidates to inform all
and sundry about themselves, cannot be gainsaid.
My learned brother in the Court Cruz, J. remonstrates, however, that "t[he]
financial disparity among the candidates is a fact of life that cannot be
corrected by legislation except only by the limitation of their respective
expenses to a common maximum. The flaw in the prohibition under
challenge is that while the rich candidate is barred from buying mass media
coverage, it nevertheless allows him to spend his funds on other campaign
activities also inaccessible to his strained rival." True enough Section 11 (b)
does not, by itself or in conjunction with Sections 90 and 92 of the Omnibus
Election Code, place political candidates on complete and perfect equality
inter se without regard to their financial affluence or lack thereof. But a
regulatory measure that is less than perfectly comprehensive or which does
not completely obliterate the evil sought to be remedied, is not for that reason
alone constitutionally infirm. The Constitution does not, as it cannot, exact
perfection in governmental regulation. All it requires, in accepted doctrine, is
that the regulatory measure under challenge bear a reasonable nexus with
the constitutionally sanctioned objective. That the supervision or regulation of
communication and information media is not, in itself, a forbidden modality is
made clear by the Constitution itself in Article IX (C) (4).
It is believed that, when so viewed, the limiting impact of Section 11 (b) upon
the right to free speech of the candidates themselves may be seen to be not
unduly repressive or unreasonable. For, once again, there is nothing in
Section 11 (b) to prevent media reporting of and commentary on
pronouncements, activities, written statements of the candidates themselves.
All other fora remain accessible to candidates, even for political
advertisements. The requisites of fairness and equal opportunity are, after
all, designed to benefit the candidates themselves.
Finally, the nature and characteristics of modern mass media, especially
electronic media, cannot be totally disregarded. Realistically, the only
limitation upon the free speech of candidates imposed is on the right of
candidates to bombard the helpless electorate with paid advertisements
commonly repeated in the mass media ad nauseam. Frequently, such
repetitive political commercials when fed into the electronic media
themselves constitute invasions of the privacy of the general electorate. It
might be supposed that it is easy enough for a person at home simply to flick
off his radio of television set. But it is rarely that simple. For the candidates
with deep pockets may purchase radio or television time in many, if not all,
the major stations or channels. Or they may directly or indirectly own or
control the stations or channels themselves. The contemporary reality in the
Philippines is that, in a very real sense, listeners and viewers constitute a
"captive audience." 8

The paid political advertisement introjected into the electronic media and
repeated with mind-deadening frequency, are commonly intended and
crafted, not so much to inform and educate as to condition and manipulate,
not so much to provoke rational and objective appraisal of candidates'
qualifications or programs as to appeal to the non-intellective faculties of the
captive and passive audience. The right of the general listening and viewing
public to be free from such intrusions and their subliminal effects is at least
as important as the right of candidates to advertise themselves through
modern electronic media and the right of media enterprises to maximize their
revenues from the marketing of "packaged" candidates.

WHEREFORE, the Petitions should be, as they are hereby, DISMISSED for
lack of merit. No pronouncement as to costs.

SO ORDERED.
G.R. No. 147571 May 5, 2001
SOCIAL WEATHER STATIONS, INCORPORATED and KAMAHALAN
PUBLISHING CORPORATION, doing business as MANILA STANDARD,
petitioners,
vs.
COMMISSION ON ELECTIONS, respondent.
MENDOZA, J.:
Petitioner, Social Weather Stations, Inc. (SWS), is a private non-stock, non-
profit social research institution conducting surveys in various fields,
including economics, politics, demography, and social development, and
thereafter processing, analyzing, and publicly reporting the results thereof.
On the other hand, petitioner Kamahalan Publishing Corporation publishes
the Manila Standard, a newspaper of general circulation, which features
news- worthy items of information including election surveys. 1wphi1.nt
Petitioners brought this action for prohibition to enjoin the Commission on
Elections from enforcing 5.4 of RA. No.9006 (Fair Election Act), which
provides:
Surveys affecting national candidates shall not be published fifteen
(15) days before an election and surveys affecting local candidates
shall not be published seven (7) days be- fore an election.
The term "election surveys" is defined in 5.1 of the law as follows:
Election surveys refer to the measurement of opinions and
perceptions of the voters as regards a candidate's popularity,
qualifications, platforms or a matter of public discussion in relation to
the election, including voters preference for candidates or publicly
discussed issues during the campaign period (hereafter referred to
as "Survey").
The implement 5.4, Resolution 3636, 24(h), dated March I, 2001, of the
COMELEC enjoins
Surveys affecting national candidates shall not be published fifteen
(15) days before an election and surveys affecting local candidates
shall not be published seven (7) days be- fore an election.
Petitioner SWS states that it wishes to conduct an election survey throughout
the period of the elections both at the national and local levels and release to
the media the results of such survey as well as publish them directly.
Petitioner Kamahalan Publishing Corporation, on the other hand, states that
it intends to publish election survey results up to the last day of the elections
on May 14,2001.
Petitioners argue that the restriction on the publication of election survey
results constitutes a prior restraint on the exercise of freedom of speech
without any clear and present danger to justify such restraint. They claim that
SWS and other pollsters conducted and published the results of surveys prior
to the 1992, 1995, and 1998 elections up to as close as two days before the
election day without causing confusion among the voters and that there is
neither empirical nor historical evidence to support the conclusion that there
is an immediate and inevitable danger to tile voting process posed by
election surveys. They point out that no similar restriction is imposed on
politicians from explaining their opinion or on newspapers or broadcast
media from writing and publishing articles concerning political issues up to
the day of the election. Consequently, they contend that there is no reason
for ordinary voters to be denied access to the results of election surveys,
which are relatively objective. 1wphi1.nt
Respondent Commission on Elections justifies the restrictions in 5.4 of R.A.
No. 9006 as necessary to prevent the manipulation and corruption of the
electoral process by unscrupulous and erroneous surveys just before the
election. It contends that (1) the prohibition on the publication of election
survey results during the period proscribed by law bears a rational
connection to the objective of the law, i.e., the prevention of the debasement
of the electoral process resulting from manipulated surveys, bandwagon
effect, and absence of reply; (2) it is narrowly tailored to meet the "evils"
sought to be prevented; and (3) the impairment of freedom of expression is
minimal, the restriction being limited both in duration, i.e., the last 15 days
before the national election and the last 7 days before a local election, and in
scope as it does not prohibit election survey results but only require
timeliness. Respondent claims that in National Press Club v. COMELEC,1 a
total ban on political advertisements, with candidates being merely allocated
broadcast time during the so-called COMELEC space or COMELEC hour,
was upheld by this Court. In contrast, according to respondent, it states that
the prohibition in 5.4 of RA. No. 9006 is much more limited.
For reasons hereunder given, we hold that 5.4 of R.A. No. 9006 constitutes
an unconstitutional abridgment of freedom of speech, expression, and the
press.
To be sure, 5.4Iays a prior restraint on freedom of speech, expression, and
the press prohibiting the publication of election survey results affecting
candidates within the prescribed periods of fifteen (15) days immediately
preceding a national election seven (7) days before a local election. Because
of tile preferred status of tile constitutional rights of speech, expression, and
he press, such a measure is vitiated by a weighty presumption of invalidity. 2
Indeed, any system of prior restraints of expression comes to this Court
bearing a heavy Presumption against its constitutional validity. ...The
Government thus carries a heavy burden of showing justification for in
enforcement of such restraint. "'3 There, thus a reversal of the normal
presumption of validity that inheres in every legislation.
Nor may it be argued that because of Art. IX-C, 4 of the Constitution, which
gives the COMELEC supervisory power to regulate the enjoyment or
utilization of franchise for the operation of media of communication, no
presumption of invalidity attaches to a measure like 5.4. For as we have
pointed out in sustaining tile ban on media political advertisements, the grant
of power to the COMELEC under Art. IX-C, 4 is limited to ensuring "equal
opportunity, time, space, and the right to reply" as well as uniform and
reasonable rates of charges for the use of such media facilities "public
information campaigns and forums among candidates."4 This Court stated:
The technical effect of Article IX (C) (4) of the Constitution may be
seen to be that no presumption of invalidity arises in respect of
exercises of supervisory or regulatory authority on the part of the
Comelec for the Purpose of securing equal opportunity among
candidates for political office, although such supervision or regulation
may result in some limitation of the rights of free speech and free
press.5
MR JUSTICE KAPUNAN dissents. He rejects as inappropriate the test of
clear and present danger for determining the validity of 5.4. Indeed, as has
been pointed out in Osmea v. COMELEC,6 this test was originally
formulated for the criminal law and only later appropriated for free speech
cases. Hence, while it may be useful for determining the validity of laws
dealing with inciting to sedition or incendiary speech, it may not be adequate
for such regulations as the one in question. For such a test is concerned with
questions of the gravity and imminence of the danger as basis for curtailing
free speech, which is not the case of 5.4 and similar regulations.
Instead, MR JUSTICE KAPUNAN purports to engage in a form of balancing
by "weighing and balancing the circumstances to determine whether public
interest [in free, orderly, honest, peaceful and credible elections] is served by
the regulation of the free enjoyment of the rights" (page 7). After canvassing
the reasons for the prohibition, i.e., to prevent last-minute pressure on voters,
the creation of bandwagon effect to favor candidates, misinformation, the
junking" of weak and "losing" candidates by their parties, and the form of
election cheating called "dagdag-bawas" and invoking the State's power to
supervise media of information during the election period (pages 11-16), the
dissenting opinion simply concludes:
Viewed in the light of the legitimate and significant objectives of
Section 5.4, It may be seen that its limiting impact on the rights of
free speech and of the press is not unduly repressive or
unreasonable. In Indeed, it is a mere restriction, not an absolute
prohibition, on the publication of election surveys. It is limited in
duration; it applies only during the period when the voters are
presumably contemplating whom they should elect and when they
are most susceptible to such unwarranted persuasion. These
surveys may be published thereafter. (Pages 17-18)
The dissent does not, however, show why, on balance, these considerations
should outweigh the value of freedom of expression. Instead, reliance is
placed on Art. IX-C, 4. As already stated, the purpose of Art. IX-C, 4 is to
"ensure equal opportunity, time, and space and the right of reply, including
reasonable, equal rates therefor for public information campaigns and forums
among candidates. " Hence the validity of the ban on media advertising. It is
noteworthy that R.A. No. 9006, 14 has lifted the ban and now allows
candidates to advertise their candidacies in print and broadcast media.
Indeed, to sustain the ban on the publication of survey results would sanction
the censorship of all speaking by candidates in an election on the ground that
the usual bombasts and hyperbolic claims made during the campaigns can
confuse voters and thus debase the electoral process.
In sum, the dissent has engaged only in a balancing at the margin. This form
of ad hoc balancing predictably results in sustaining the challenged
legislation and leaves freedom of speech, expression, and the press with
little protection. For anyone who can bring a plausible justification forward
can easily show a rational connection between the statute and a legitimate
governmental purpose. In contrast, the balancing of interest undertaken by
then Justice Castro in Gonzales v. COMELEC,7 from which the dissent in this
case takes its cue, was a strong one resulting in his conclusion that , 50-B
of R.A. No. 4880, which limited the period of election campaign and partisan
political activity, was an unconstitutional abridgment of freedom of
expression.
Nor can the ban on election surveys be justified on the ground that there are
other countries - 78, according to the Solicitor General, while the dissent
cites 28 - which similarly impose restrictions on the publication of election
surveys. At best this survey is inconclusive. It is note worthy that in the
United States no restriction on the publication of election survey results
exists. It cannot be argued that this is because the United States is a mature
democracy. Neither are there laws imposing an embargo on survey results,
even for a limited period, in other countries. As pointed out by petitioners, the
United Kingdom, Austria, Belgium, Denmark, Estonia, Finland, Iceland,
Ireland, Latvia, Malta, Macedonia, the Netherlands, Norway, Sweden, and
Ukraine, some of which are no older nor more mature than the Philippines in
political development, do not restrict the publication of election survey
results.
What test should then be employed to determine the constitutional validity of
5.4? The United States Supreme Court, through Chief Justice Warren, held
in United States v. O 'Brien:
[A] Government regulation is sufficiently justified [1] if it is within the
constitutional power of the Government; [2] if it furthers an important
or substantial governmental interest; [3] if the governmental interest
is unrelated to the suppression of free expression; and [4] if the
incidental restriction on alleged First Amendment freedoms [of
speech, expression and press] is no greater than is essential to the
furtherance of that interest.8
This is so far the most influential test for distinguishing content-based from
content neutral regulations and is said to have "become canonical in the
review of such laws."9 is noteworthy that the O 'Brien test has been applied
by this Court in at least two cases.10
Under this test, even if a law furthers an important or substantial
governmental interest, it should be invalidated if such governmental interest
is "not unrelated to the Expression of free expression." Moreover, even if the
purpose is unrelated to the suppression of free speech, the law should
nevertheless be invalidated if the restriction on freedom of expression is
greater than is necessary to achieve the governmental purpose in question.
Our inquiry should accordingly focus on these two considerations as applied
to 5.4.
>First. Sec. 5.4 fails to meet criterion [3] of the O 'Brien test because the
causal connection of expression to the asserted governmental interest
makes such interest "not related to the suppression of free expression." By
prohibiting the publication of election survey results because of the possibility
that such publication might undermine the integrity of the election, 5.4
actually suppresses a whole class of expression, while allowing the
expression of opinion concerning the same subject matter by newspaper
columnists, radio and TV commentators, armchair theorists, and other
opinion takers. In effect, 5.4 shows a bias for a particular subject matter, if
not viewpoint, by referring personal opinion to statistical results. The
constitutional guarantee of freedom of expression means that "the
government has no power to restrict expression because of its message, its
ideas, its subject matter, or its content."11 The inhibition of speech should be
upheld only if the expression falls within one of the few unprotected
categories dealt with in Chaplinsky v. New Hampshire, 12 thus:
There are certain well-defined and narrowly limited classes of
speech, the prevention and punishment of which have never been
thought to raise any Constitutional problem. These include the lewd
and obscene, the profane, the libelous, and the insulting or 'fighting'
words - those which by their very utterance inflict injury or tend to
incite an immediate breach of the peace. [S]uch utterances are no
essential part of any exposition of ideas, and are of such slight social
value as a step to truth that any benefit that may be derived from
them is clearly outweighed by the social interest in order and morality
Nor is there justification for the prior restraint which 5.4Iays on protected
speech. Near v. Minnesota,13 it was held:
[The] protection even as to previous restraint is not absolutely
unlimited. But the limitation has been recognized only in exceptional
cases. No one would question but that a government might
prevent actual obstruction to its recruiting service or the publication
of the sailing dates transports or the number and location of troops.
On similar grounds, the primary requirements of decency may be
enforced against obscene publications. The security of the
community life may be protected against incitements to acts of
violence and overthrow by force of orderly government
Thus, contrary to the claim of the Solicitor General, the prohibition imposed
by 5.4 cannot be justified on the ground that it is only for a limited period
and is only incidental. The prohibition may be for a limited time, but the
curtailment of the right of expression is direct, absolute, and substantial. It
constitutes a total suppression of a category of speech and is not made less
so because it is only for a period of fifteen (15) days immediately before a
national election and seven (7) days immediately before a local election. ..
This sufficiently distinguishes 5.4 from R.A. No. 6646, 11(b), which this
Court found to be valid in National Press Club v. COMELEC,14 and Osmea
v. COMELEC.15 For the ban imposed by R.A. No. 6646, 11(b) is not only
authorized by a specific constitutional provision,16 but it also provided an
alternative so that, as this Court pointed out in Osmea, there was actually
no ban but only a substitution of media advertisements by the COMELEC
space and COMELEC hour.
Second. Even if the governmental interest sought to be promoted is
unrelated to the suppression of speech and the resulting restriction of free
expression is only incidental, 5.4 nonetheless fails to meet criterion [4] of
the O 'Brien test, namely, that the restriction be not greater than is necessary
to further the governmental interest. As already stated, 5.4 aims at the
prevention of last-minute pressure on voters, the creation of bandwagon
effect, "junking" of weak or "losing" candidates, and resort to the form of Prohibition has been fund appropriate for testing the constitutionality of
election cheating called "dagdag-bawas." Praiseworthy as these aims of the various election laws, rules, and regulations.19
regulation might be, they cannot be attained at the sacrifice of the
fundamental right of expression, when such aim can be more narrowly WHEREFORE, the petition for prohibited GRANTED and 5.4 of R.A. No.
pursued by punishing unlawful acts, rather than speech because of 9006 24(h) of COMELEC Resolution 3636, March 1, 2001, are declared
apprehension that such speech creates the danger of such evils. Thus, under unconstitutional. 1wphi1.nt
the Administrative Code of 1987,17 the COMELEC is given the power:
SO ORDERED.
To stop any illegal activity, or confiscate, tear down, and stop any
unlawful, libelous, misleading or false election propaganda, after due
notice and hearing.

This is surely a less restrictive means than the prohibition contained in 5.4.
Pursuant to this power of the COMELEC, it can confiscate bogus survey
results calculated to mislead voters. Candidates can have their own surveys
conducted. No right of reply can be invoked by others. No principle of
equality is involved. It is a free market to which each candidate brings his
ideas. As for the purpose of the law to prevent bandwagon effects, it is
doubtful whether the Government can deal with this natural-enough tendency
of some voters. Some voters want to be identified with the "winners." Some
are susceptible to the herd mentality. Can these be legitimately prohibited by
suppressing the publication of survey results, which are a form of
expression? It has been held that "[mere] legislative preferences or beliefs
respecting matters of public convenience may well support regulation
directed at other personal activities, but be insufficient to justify such as
diminishes the exercise of rights so vital to the maintenance of democratic
institutions."18

To summarize then, we hold that 5.4 is invalid because (1) it imposes a

prior restraint on the freedom of expression, (2) it is a direct and total
suppression of a category of expression even though such suppression is
only for a limited period, and (3) the governmental interest sought to be
promoted can be achieved by means other than suppression of freedom of
expression.

On the other hand, the COMELEC contends that under Art. IX-A, 7 of the
Constitution, its decisions, orders, or resolution may be reviewed by this
Court only certiorari. The flaws in this argument is that it assumes that its
Resolution 3636, March 1, 2001 is a "decision, order, or resolution" within the
meaning of Art. IX-A, 7. Indeed, counsel for COMELEC maintain that
Resolution 3636 was "rendered" by the Commission. However, the
Resolution does not purport to adjudicate the right of any party. It is not an
exercise by the COMELEC of its adjudicatory power to settle the claims of
parties. To the contrary, Resolution 3636 clearly states that it is promulgated
to implement the provisions of R.A. No. 9006. Hence, there is no basis for
COMELEC's claim that this petition for prohibition is inappropriate.
G.R. No. 203302 April 11, 2013
MAYOR EMMANUEL L. MALIKSI, Petitioner,
vs.
COMMISSION ON ELECTIONS AND HOMER T. SAQUILAVAN,
Respondents.
RESOLUTION
BERSAMIN, J.:
The Court hereby resolves the Extremely Urgent Motion for Reconsideration
tiled by petitioner Emmanuel L. Maliksi against the Court's decision
promulgated on March 12, 2013, dismissing his petition for certiorari
assailing the resolution dated September 14, 2012 of the Commission on
Elections (COMELEC) En Bane that sustained the declaration of respondent
Homer T. Saquilayan as the duly elected Mayor of Imus, Cavite.
For clarity, we briefly restate the factual antecedents.
During the 2010 Elections, the Municipal Board of Canvassers proclaimed
Saquilayan the winner for the position of Mayor of Imus, Cavite. Maliksi, the
candidate who garnered the second highest number of votes, brought an
election protest in the Regional Trial Court (RTC) in Imus, Cavite alleging
that there were irregularities in the counting of votes in 209 clustered
precincts. Subsequently, the RTC held a revision of the votes, and, based on
the results of the revision, declared Maliksi as the duly elected Mayor of Imus
commanding Saquilayan to cease and desist from performing the functions
of said office. Saquilayan appealed to the COMELEC. In the meanwhile, the
RTC granted Maliksis motion for execution pending appeal, and Maliksi was
then installed as Mayor.
In resolving the appeal, the COMELEC First Division, without giving notice to
the parties, decided to recount the ballots through the use of the printouts of
the ballot images from the CF cards. Thus, it issued an order dated March
28, 2012 requiring Saquilayan to deposit the amount necessary to defray the
expenses for the decryption and printing of the ballot images. Later, it issued
another order dated April 17, 2012 for Saquilayan to augment his cash
deposit.
On August 15, 2012, the First Division issued a resolution nullifying the
RTCs decision and declaring Saquilayan as the duly elected Mayor.1
Maliksi filed a motion for reconsideration, alleging that he had been denied
his right to due process because he had not been notified of the decryption
proceedings. He argued that the resort to the printouts of the ballot images,
which were secondary evidence, had been unwarranted because there was
no proof that the integrity of the paper ballots had not been preserved.
On September 14, 2012, the COMELEC En Banc resolved to deny Maliksis
motion for reconsideration.2
Maliksi then came to the Court via petition for certiorari, reiterating his
objections to the decryption, printing, and examination of the ballot images
without prior notice to him, and to the use of the printouts of the ballot images
in the recount proceedings conducted by the First Division.1wphi1
In the decision promulgated on March 12, 2013, the Court, by a vote of 8-7,
dismissed Maliksis petition for certiorari. The Court concluded that Maliksi
had not been denied due process because: (a) he had received notices of
the decryption, printing, and examination of the ballot images by the First
Division referring to the orders of the First Division directing Saquilayan to
post and augment the cash deposits for the decryption and printing of the
ballot images; and (b) he had been able to raise his objections to the
decryption in his motion for reconsideration. The Court then pronounced that
the First Division did not abuse its discretion in deciding to use the ballot
images instead of the paper ballots, explaining that the printouts of the ballot
images were not secondary images, but considered original documents with
the same evidentiary value as the official ballots under the Rule on Electronic
Evidence; and that the First Divisions finding that the ballots and the ballot
boxes had been tampered had been fully established by the large number of
cases of double-shading discovered during the revision.
In his Extremely Urgent Motion for Reconsideration, Maliksi raises the
following arguments, to wit:
I.
WITH ALL DUE RESPECT, THIS HONORABLE SUPREME COURT EN
BANC GRAVELY ERRED IN DISMISSING THE INSTANT PETITION
DESPITE A CLEAR VIOLATION OF PETITIONERS CONSTITUTIONAL
RIGHT TO DUE PROCESS OF LAW CONSIDERING THAT DECRYPTION,
PRINTING AND EXAMINATION OF THE DIGITAL IMAGES OF THE
BALLOTS, WHICH IS THE BASIS FOR THE ASSAILED 14 SEPTEMBER
2012 RESOLUTION OF THE PUBLIC RESPONDENT, WHICH IN TURN
AFFIRMED THE 15 AUGUST 2012 RESOLUTION OF THE COMELEC
FIRST DIVISION, WERE DONE INCONSPICUOUSLY UPON A MOTU
PROPRIO DIRECTIVE OF THE COMELEC FIRST DIVISION SANS ANY
NOTICE TO THE PETITIONER, AND FOR THE FIRST TIME ON APPEAL.
 II.
WITH ALL DUE RESPECT, THIS HONORABLE SUPREME COURT EN
BANC GRAVELY ERRED IN UPHOLDING THE COMELEC FIRST
DIVISIONS RULING TO DISPENSE WITH THE PHYSICAL BALLOTS AND
RESORT TO THEIR DIGITAL IMAGES NOTWITHSTANDING THE FACT
THAT THE BALLOTS ARE THE BEST AND MOST CONCLUSIVE
EVIDENCE OF THE VOTERS WILL, AND THAT BALLOT IMAGES CAN BE
RESORTED TO ONLY IF THE OFFICIAL BALLOTS ARE LOST OR THEIR
INTEGRITY WAS COMPROMISED AS DETERMINED BY THE
RECOUNT/REVISION COMMITTEE, CIRCUMSTANCES WHICH ARE
WANTING IN THIS CASE, AND IN FACT THE INTEGRITY OF THE
BALLOT BOXES AND ITS CONTENTS WAS PRESERVED AND THE
ISSUE OF TAMPERING WAS ONLY BELATEDLY RAISED BY THE
PRIVATE RESPONDENT AFTER THE REVISION RESULTS SHOWED
THAT HE LOST.
III.
WITH ALL DUE RESPECT, IT IS THE HUMBLE SUBMISSION OF THE
PETITIONER-MOVANT THAT THE 12 MARCH 2013 RESOLUTION
ISSUED BY THE HONORABLE SUPREME COURT EN BANC IS NULL
AND VOID AB INITIO AND THEREFORE OF NO FORCE AND EFFECT,
FOR HAVING BEEN PROMULGATED DESPITE THE ABSENCE OF
HONORABLE SUPREME COURT JUSTICE JOSE PORTUGAL PEREZ AT
THE TIME OF THE DELIBERATION AND VOTING ON THE 12 MARCH
2013 RESOLUTION IN THE INSTANT CASE.3
Maliksi insists: (a) that he had the right to be notified of every incident of the
proceedings and to be present at every stage thereof; (b) that he was
deprived of such rights when he was not informed of the decryption, printing,
and examination of the ballot images by the First Division; (c) that the March
28, 2012 and April 17, 2012 orders of the First Division did not sufficiently
give him notice inasmuch as the orders did not state the date, time, and
venue of the decryption and printing of the ballot images; and (d) that he was
thus completely deprived of the opportunity to participate in the decryption
proceedings.
Maliksi contends that the First Divisions motu proprio directive for the
decryption, printing, and examination of the ballot images was highly
irregular. In this regard, he asserts: (a) that the decryption, printing, and
examination should have taken place during the revision before the trial court
and after the revision committee had determined that the integrity of the
official ballots had not been preserved; (b) that the trial court did not make
such determination; (c) that, in fact, Saquilayan did not allege or present any
proof in the RTC to show that the ballots or the ballot boxes had been
tampered, and had, in fact, actively participated in the revision proceedings;
(d) that the First Division should not have entertained the allegation of ballot
tampering belatedly raised on appeal; (e) that the First Division should have
limited itself to reviewing the evidence on record; and (f) that the First
Division did not even explain how it had arrived at the conclusion that the
integrity of the ballots had not been preserved.
Maliksi submits that the decision promulgated on March 12, 2013 is null and
void for having been promulgated despite the absence from the deliberations
and lack of signature of Justice Jose Portugal Perez.
Ruling
The Court grants Maliksis Extremely Urgent Motion for Reconsideration, and
reverses the decision promulgated on March 12, 2013 on the ground that the
First Division of the COMELEC denied to him the right to due process by
failing to give due notice on the decryption and printing of the ballot images.
Consequently, the Court annuls the recount proceedings conducted by the
First Division with the use of the printouts of the ballot images.
It bears stressing at the outset that the First Division should not have
conducted the assailed recount proceedings because it was then exercising
appellate jurisdiction as to which no existing rule of procedure allowed it to
conduct a recount in the first instance. The recount proceedings authorized
under Section 6, Rule 15 of COMELEC Resolution No. 8804, as amended,
are to be conducted by the COMELEC Divisions only in the exercise of their
exclusive original jurisdiction over all election protests involving elective
regional (the autonomous regions), provincial and city officials. 4
As we see it, the First Division arbitrarily arrogated unto itself the conduct of
the recount proceedings, contrary to the regular procedure of remanding the
protest to the RTC and directing the reconstitution of the Revision Committee
for the decryption and printing of the picture images and the revision of the
ballots on the basis thereof. Quite unexpectedly, the COMELEC En Banc
upheld the First Divisions unwarranted deviation from the standard
procedures by invoking the COMELECs power to "take such measures as
the Presiding Commissioner may deem proper," and even citing the Courts
minute resolution in Alliance of Barangay Concerns (ABC) Party-List v.
Commission on Elections5 to the effect that the "COMELEC has the power to
adopt procedures that will ensure the speedy resolution of its cases. The
Court will not interfere with its exercise of this prerogative so long as the
parties are amply heard on their opposing claims."
Based on the pronouncement in Alliance of Barangay Concerns (ABC) v.
Commission on Elections, the power of the COMELEC to adopt procedures
that will ensure the speedy resolution of its cases should still be exercised
only after giving to all the parties the opportunity to be heard on their
opposing claims. The parties right to be heard upon adversarial issues and
matters is never to be waived or sacrificed, or to be treated so lightly
because of the possibility of the substantial prejudice to be thereby caused to
the parties, or to any of them. Thus, the COMELEC En Banc should not have
upheld the First Divisions deviation from the regular procedure in the guise
of speedily resolving the election protest, in view of its failure to provide the
parties with notice of its proceedings and an opportunity to be heard, the
most basic requirements of due process.
I.
Due process requirements
The picture images of the ballots are electronic documents that are regarded
as the equivalents of the original official ballots themselves.6 In Vinzons-
Chato v. House of Representatives Electoral Tribunal,7 the Court held that
"the picture images of the ballots, as scanned and recorded by the PCOS,
are likewise official ballots that faithfully capture in electronic form the votes
cast by the voter, as defined by Section 2(3) of R.A. No. 9369. As such, the
printouts thereof are the functional equivalent of the paper ballots filled out by
the voters and, thus, may be used for purposes of revision of votes in an
electoral protest."
That the two documentsthe official ballot and its picture imageare
considered "original documents" simply means that both of them are given
equal probative weight. In short, when either is presented as evidence, one is
not considered as weightier than the other.
But this juridical reality does not authorize the courts, the COMELEC,
and the Electoral Tribunals to quickly and unilaterally resort to the
printouts of the picture images of the ballots in the proceedings had
before them without notice to the parties. Despite the equal probative
weight accorded to the official ballots and the printouts of their picture
images, the rules for the revision of ballots adopted for their respective
proceedings still consider the official ballots to be the primary or best
evidence of the voters will. In that regard, the picture images of the
ballots are to be used only when it is first shown that the official ballots
are lost or their integrity has been compromised.
For instance, the aforesaid Section 6, Rule 15 of COMELEC Resolution No.
8804 (In Re: Comelec Rules of Procedure on Disputes In An Automated
Election System in Connection with the May 10, 2010 Elections), as
amended by COMELEC Resolution No. 9164, itself requires that "the
Recount Committee determines that the integrity of the ballots has been
violated or has not been preserved, or are wet and otherwise in such a
condition that (the ballots) cannot be recounted" before the printing of the
image of the ballots should be made, to wit:
xxxx
(g) Only when the Recount Committee, through its chairman, determines that
the integrity of the ballots has been preserved or that no signs of tampering
of the ballots are present, will the recount proceed. In case there are signs
that the ballots contained therein are tampered, compromised, wet or are
otherwise in such a condition that it could not be recounted, the Recount
Committee shall follow paragraph (l) of this rule.
xxxx
(l) In the event the Recount Committee determines that the integrity of the
ballots has been violated or has not been preserved, or are wet and
otherwise in such a condition that it cannot be recounted, the Chairman of
the Committee shall request from the Election Records and Statistics
Department (ERSD), the printing of the image of the ballots of the subject
precinct stored in the CF card used in the May 10, 2010 elections in the
presence of the parties. Printing of the ballot images shall proceed only upon
prior authentication and certification by a duly authorized personnel of the
Election Records and Statistics Department (ERSD) that the data or the
images to be printed are genuine and not substitutes. (Emphases supplied.)
xxxx
Section 6, Rule 10 (Conduct of Revision) of the 2010 Rules of Procedure for
Municipal Election Contests, which governs the proceedings in the Regional
Trial Courts exercising original jurisdiction over election protests, provides:
xxxx
(m) In the event that the revision committee determines that the integrity of
the ballots and the ballot box have not been preserved, as when proof of
tampering or substitution exists, it shall proceed to instruct the printing of the
picture image of the ballots stored in the data storage device for the precinct.
The court shall provide a non-partisan technical person who shall conduct
the necessary authentication process to ensure that the data or image stored
is genuine and not a substitute. Only after this determination can the printed
picture image be used for the recount. (Emphases supplied.)
 xxxx
A similar procedure is found in the 2010 Rules of the Presidential Electoral
Tribunal, to wit:
Rule 43. Conduct of the revision. The revision of votes shall be done
through the use of appropriate PCOS machines or manually and visually, as
the Tribunal may determine, and according to the following procedures:
xxxx
(q) In the event that the RC determines that the integrity of the ballots and
the ballot box was not preserved, as when there is proof of tampering or
substitution, it shall proceed to instruct the printing of the picture image of the
ballots of the subject precinct stored in the data storage device for the same
precinct. The Tribunal may avail itself of the assistance of the COMELEC for
the service of a non-partisan technical person who shall conduct the
necessary authentication process to ensure that the data or images stored
are genuine and not merely substitutes. It is only upon such determination
that the printed picture image can be used for the revision of votes.
(Emphases supplied.)
xxxx
Also, the House of Representative Electoral Tribunals Guidelines on the
Revision of Ballots requires a preliminary hearing to be held for the purpose
of determining whether the integrity of the ballots and ballot boxes used in
the May 10, 2010 elections was not preserved, as when there is proof of
tampering or substitutions, to wit:
Section 10. Revision of Ballots
xxxx
(d) When it has been shown, in a preliminary hearing set by the parties or by
the Tribunal, that the integrity of the ballots and ballot boxes used in the May
10, 2010 elections was not preserved, as when there is proof of tampering or
substitutions, the Tribunal shall direct the printing of the picture images of the
ballots of the subject precinct stored in the data storage device for the same
precinct. The Tribunal shall provide a non-partisan technical person who
shall conduct the necessary authentication process to ensure that the data or
image stored is genuine and not a substitute. It is only upon such
determination that the printed picture image can be used for the revision. (As
amended per Resolution of February 10, 2011; Emphases supplied.)
xxxx
All the foregoing rules on revision of ballots stipulate that the printing of the
picture images of the ballots may be resorted to only after the proper
Revision/Recount Committee has first determined that the integrity of the
ballots and the ballot boxes was not preserved.
The foregoing rules further require that the decryption of the images stored in
the CF cards and the printing of the decrypted images take place during the
revision or recount proceedings. There is a good reason for thus fixing where
and by whom the decryption and the printing should be conducted. It is
during the revision or recount conducted by the Revision/Recount Committee
when the parties are allowed to be represented, with their representatives
witnessing the proceedings and timely raising their objections in the course
of the proceedings. Moreover, whenever the Revision/Recount Committee
makes any determination that the ballots have been tampered and have
become unreliable, the parties are immediately made aware of such
determination.
When, as in the present case, it was not the Revision/Recount Committee or
the RTC exercising original jurisdiction over the protest that made the finding
that the ballots had been tampered, but the First Division in the exercise of its
appellate jurisdiction, the parties should have been given a formal notice
thereof.
Maliksi was not immediately made aware of that crucial finding because the
First Division did not even issue any written resolution stating its reasons for
ordering the printing of the picture images. The parties were formally notified
that the First Division had found that the ballots had been tampered only
when they received the resolution of August 15, 2012, whereby the First
Division nullified the decision of the RTC and declared Saquilayan as the
duly elected Mayor. Even so, the resolution of the First Division to that effect
was unusually mute about the factual bases for the finding of ballot box
tampering, and did not also particularize how and why the First Division was
concluding that the integrity of the ballots had been compromised. All that the
First Division declared as justification was a simple generalization of the
same being apparent from the allegations of ballot and ballot box tampering
and upon inspection of the ballot boxes, viz:
xxxx
The Commission (First Division) took into consideration the allegations of
ballot and ballot box tampering and upon inspecting the ballot boxes, it is
apparent that the integrity of the ballots had been compromised so, to be
able to best determine the true will of the electorate, we decided to go over
the digital image of the appealed ballots.8 (Emphasis supplied)
xxxx
It was the COMELEC En Bancs assailed resolution of September 14, 2012
that later on provided the explanation to justify the First Divisions resort to
the picture images of the ballots, by observing that the "unprecedented
number of double-votes" exclusively affecting the position of Mayor and the
votes for Saquilayan had led to the belief that the ballots had been tampered.
However, that explanation by the COMELEC En Banc did not cure the First
Divisions lapse and did not erase the irregularity that had already invalidated
the First Divisions proceedings.
In his dissenting opinion, Justice Antonio T. Carpio advances the view that
the COMELECs finding of ballot tampering was a mere surplusage because
there was actually no need for such finding before the ballots digital
counterparts could be used. He cites Section 3, Rule 16 of COMELEC
Resolution No. 8804, as amended by Resolution No. 9164, which states:
Section 3. Printing of Ballot Images. - In case the parties deem it necessary,
they may file a motion to be approved by the Division of the Commission
requesting for the printing of ballot images in addition to those mentioned in
the second paragraph of item (e). Parties concerned shall provide the
necessary materials in the printing of images such as but not limited to
copying papers, toners and printers. Parties may also secure, upon prior
approval by the Division of the Commission, a soft copy of the ballot images
contained in a secured/hashed disc on the condition that the ballot images be
first printed, at the expense of the requesting party, and that the printed
copies be signed by the parties respective revisors or representatives and by
an ERSD IT-capable representative and deposited with the Commission.
The Over-all chairman shall coordinate with the Director IV, Election Records
and Statistics Department (ERSD), for the printing of images. Said director
shall in turn designate a personnel who will be responsible in the printing of
ballot images.
Justice Carpio posits that when a party files a motion for the printing of the
ballots that he or she deems necessary, there is actually no need for a
finding of tampering of the ballots or the ballot boxes before the COMELEC
Division may grant the motion. He states that a determination by the parties
that the printing is necessary under Section 3 is a ground separate from
Section 6(e), which in turn pertinently states that:
Section 6. Conduct of the Recount
xxxx
(e) Before the opening of the ballot box, the Recount Committee shall note its
condition as well as that of the locks or locking mechanism and record the
condition in the recount report. From its observation, the Recount Committee
must also make a determination as to whether the integrity of the ballot box
has been preserved.
In the event that there are signs of tampering or if the ballot box appears to
have been compromised, the Recount Committee shall still proceed to open
the ballot box and make a physical inventory of the contents thereof. The
committee shall, however, record its general observation of the ballots and
other documents found in the ballot box.
The application of Section 3 to this case is inappropriate, considering that the
First Division did not in any way suggest in its decision dated August 15,
2010 that it was resolving Saquilayans motion to print the ballot images.
Instead, the First Division made therein a finding of tampering, thus:
The COMELEC (First Division) took into consideration the allegations of
ballot and ballot box tampering and upon inspecting the ballot boxes, it is
apparent that the integrity of the ballots had been compromised so, to be
able to best determine the true will of the electorate, we decided to go over
the digital images of the appealed ballots.
Even the COMELEC En Banc did not indicate in its decision dated
September 14, 2012 that the First Division merely resolved Saquilayans
motion for the printing of the ballot images; instead, it reinforced the First
Divisions finding that there was tampering of the ballots. The non-mention of
Saquilayans motion was a clear indication of the COMELECs intention to
act motu proprio; and also revealed its interpretation of its very own rules,
that there must be justifiable reason, i.e. tampering, before the ballot images
could be resorted to.
The application of Section 3 would only highlight the First Divisions denial of
Maliksis right to due process. For, if the First Division was really only acting
on a motion to allow the printing of the ballot images, there was a greater
reason for the First Division to have given the parties notice of its ruling
thereon. But, as herein noted, the First Division did not issue such ruling.
To interpret Section 3 as granting to any one of the parties the right to move
for the printing of the ballot images should such party deem it necessary, and
the COMELEC may grant such motion, is contrary to its clear wording.
Section 3 explicitly states: "in case the parties deem it necessary, they may
file a motion." The provision really envisions a situation in which both parties
have agreed that the ballot images should be printed. Should only one of the
parties move for the printing of the ballot images, it is not Section 3 that
applies but Section 6(e), which then requires a finding that the integrity of the
ballots has been compromised.
The disregard of Maliksis right to be informed of the decision to print the
picture images of the ballots and to conduct the recount proceedings during
the appellate stage cannot be brushed aside by the invocation of the fact that
Maliksi was able to file, after all, a motion for reconsideration. To be exact,
the motion for reconsideration was actually directed against the entire
resolution of the First Division, while Maliksis claim of due process violation
is directed only against the First Divisions recount proceedings that resulted
in the prejudicial result rendered against him. Notably, the First Division did
not issue any order directing the recount. Without the written order, Maliksi
was deprived of the chance to seek any reconsideration or even to assail the
irregularly-held recount through a seasonable petition for certiorari in this
Court. In that context, he had no real opportunity to assail the conduct of the
recount proceedings.
The service of the First Division orders requiring Saquilayan to post and
augment the cash deposits for the printing of the picture images did not
sufficiently give Maliksi notice of the First Divisions decision to print the
picture images. The said orders did not meet the requirements of due
process because they did not specifically inform Maliksi that the ballots had
been found to be tampered. Nor did the orders offer the factual bases for the
finding of tampering. Hence, to leave for Maliksi to surmise on the factual
bases for finding the need to print the picture images still violated the
principles of fair play, because the responsibility and the obligation to lay
down the factual bases and to inform Maliksi as the party to be potentially
prejudiced thereby firmly rested on the shoulders of the First Division.
Moreover, due process of law does not only require notice of the decryption,
printing, and recount proceedings to the parties, but also demands an
opportunity to be present at such proceedings or to be represented therein.
Maliksi correctly contends that the orders of the First Division simply required
Saquilayan to post and augment his cash deposit. The orders did not state
the time, date, and venue of the decryption and recount proceedings. Clearly,
the First Division had no intention of giving the parties the opportunity to
witness its proceedings.
Mendoza v. Commission on Elections9 instructs that notice to the parties and
their participation are required during the adversarial aspects of the
proceedings. In that case, after the revision of the ballots and after the
election protest case was submitted for decision, the ballots and ballot boxes
were transferred to the Senate Electoral Tribunal (SET) in connection with a
protest case pending in the SET. Mendoza later learned that the COMELEC,
with the permission of the SET, had meanwhile conducted proceedings
within the SETs premises. Mendoza then claimed that his right to due
process was violated because he had not been given notice by the
COMELEC that it would be conducting further proceedings within the SET
premises. The Court did not sustain his claim, however, and pointed out:
After consideration of the respondents Comments and the petitioners
petition and Reply, we hold that the contested proceedings at the SET
("contested proceedings") are no longer part of the adversarial aspects of the
election contest that would require notice of hearing and the participation of
the parties. As the COMELEC stated in its Comment and without any
contrary or disputing claim in the petitioners Reply:
"However, contrary to the claim of petitioner, public respondent in the
appreciation of the contested ballots in EPC No. 2007-44 simultaneously with
the SET in SET Case No. 001-07 is not conducting "further proceedings"
requiring notice to the parties. There is no revision or correction of the ballots
because EPC No. 2007-04 was already submitted for resolution. Public
respondent, in coordinating with the SET, is simply resolving the submitted
protest case before it. The parties necessarily take no part in said
deliberation, which require utmost secrecy. Needless to state, the actual
decision-making process is supposed to be conducted only by the
designated members of the Second Division of the public respondent in strict
confidentiality."
In other words, what took place at the SET were the internal deliberations of
the COMELEC, as a quasi-judicial body, in the course of appreciating the
evidence presented and deciding the provincial election contest on the
merits. These deliberations are no different from judicial deliberations which
are considered confidential and privileged. We find it significant that the
private respondents Comment fully supported the COMELECs position and
disavowed any participation in the contested proceeding the petitioner
complained about. The petitioner, on the other hand, has not shown that the
private respondent was ever present in any proceeding at the SET relating to
the provincial election contest.1wphi1
To conclude, the rights to notice and to be heard are not material
considerations in the COMELECs handling of the Bulacan provincial election
contest after the transfer of the ballot boxes to the SET; no proceedings at
the instance of one party or of COMELEC has been conducted at the SET
that would require notice and hearing because of the possibility of prejudice
to the other party. The COMELEC is under no legal obligation to notify either
party of the steps it is taking in the course of deliberating on the merits of the
provincial election contest. In the context of our standard of review for the
petition, we see no grave abuse of discretion amounting to lack or excess of
jurisdiction committed by the COMELEC in its deliberation on the Bulacan
election contest and the appreciation of ballots this deliberation entailed.10
(Emphasis supplied.)
Here, the First Division denominated the proceedings it had conducted as an
"appreciation of ballots" like in Mendoza. But unlike in Mendoza, the
proceedings conducted by the First Division were adversarial, in that the
proceedings included the decryption and printing of the picture images of the
ballots and the recount of the votes were to be based on the printouts of the
picture images. The First Division did not simply review the findings of the
RTC and the Revision Committee, but actually conducted its own recount
proceedings using the printouts of the picture image of the ballots. As such,
the First Division was bound to notify the parties to enable them to participate
in the proceedings.
Significantly, Section 6(l), Rule 15 of COMELEC Resolution No, 8804, as
amended by COMELEC Resolution No. 9164, requires the parties presence
during the printing of the images of the ballots, thus:
xxxx
(l) In the event the Recount Committee determines that the integrity of the
ballots has been violated or has not been preserved, or are wet and
otherwise in such a condition that it cannot be recounted, the Chairman of
the Committee shall request from the Election Records and Statistics
Department (ERSD), the printing of the image of the ballots of the subject
precinct stored in the CF card used in the May 10, 2010 elections in the
presence of the parties. Printing of the ballot images shall proceed only upon
prior authentication and certification by a duly authorized personnel of the
Election Records and Statistics Department (ERSD) that the data or the
images to be printed are genuine and not substitutes.
xxxx
We should not ignore that the parties participation during the revision and
recount proceedings would not benefit only the parties, but was as vital and
significant for the COMELEC as well, for only by their participation would the
COMELECs proceedings attain credibility as to the result. The parties
presence would have ensured that the requisite procedures have been
followed, including the required authentication and certification that the
images to be printed are genuine. In this regard, the COMELEC was less
than candid, and was even cavalier in its conduct of the decryption and
printing of the picture images of the ballots and the recount proceedings. The
COMELEC was merely content with listing the guidelines that the First
Division had followed in the appreciation of the ballots and the results of the
recount. In short, there was vagueness as to what rule had been followed in
the decryption and printing proceeding.
II.
Remand to the COMELEC
We are mindful of the urgent need to speedily resolve the election protest
because the term of the position involved is about to end. Thus, we overlook
pro hac vice the lack of factual basis for the COMELECs decision to use the
digital images of the ballots and sustain its decision thereon. Although a
remand of the election protest to the RTC would have been the appropriate
procedure, we direct the COMELEC En Banc instead to conduct the
decryption and printing of the digital images of the ballots and to hold recount
proceedings, with due notice to all the parties and opportunity for them to be
present and to participate during such proceedings. Nothing less serves the
ideal objective safeguarded by the Constitution.
In the absence of particular rules to govern its proceedings in accordance
with this disposition, the COMELEC is urged to follow and observe Rule 15 of
COMELEC Resolution No. 8804, as amended by COMELEC Resolution No.
9164.
The Court, by this resolution, does not intend to validate the victory of any of
the parties in the 2010 Elections. That is not the concern of the Court as yet.
The Court simply does not want to countenance a denial of the fundamental
right to due process, a cornerstone of our legal system.11 After all, it is the
Courts primary duty to protect the basic rights of the people vis--vis
government actions, thus:
It cannot be denied that most government actions are inspired with noble
intentions, all geared towards the betterment of the nation and its people. But
then again, it is important to remember this ethical principle: "The end does
not justify the means." No matter how noble and worthy of admiration the
purpose of an act, but if the means to be employed in accomplishing it is
simply irreconcilable with constitutional parameters, then it cannot still be
allowed. The Court cannot just turn a blind eye and simply let it pass. It will
continue to uphold the Constitution and its enshrined principles. 12
WHEREFORE, the Court PARTIALLY GRANTS the Extremely Urgent
Motion for Reconsideration of petitioner Emmanuel Maliksi; REVERSES the
Court's decision promulgated on March 12, 2013; and DIRECTS the
Commission on Elections En Bane to conduct proceedings for the decryption
of the picture images of the ballots involved in the protest after due
authentication, and for the recount of ballots by using the printouts of the
ballot images, with notice to and in the presence of the parties or their
representatives in accordance with the procedure laid down by Rule 15 of
COMELEC Resolution No. 8804, as amended by Resolution No. 9164.

No pronouncement on costs of suit.

SO ORDERED.
G.R. No. 204637 April 16, 2013 unaccounted lapse of time in cases where before transporting the CF cards
to the MBOCs, the members of the Boards of Election Inspectors (BEIs) went
LIWAYWAY VINZONS-CHATO, Petitioner, home first or did private business; and (f) after the closing of the polls, some
vs. CF cards failed to show recorded results.5
HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL and ELMER E.
PANOTES, Respondents. On March 21, 2011, the HRET started the initial revision of ballots in 25% of
the pilot protested CPs. The revision ended on March 24, 2011. Per physical
RESOLUTION count, Chatos votes increased by 518, while those cast for Panotes
decreased by 2,875 votes. The detailed results follow:6
REYES, J.:
VOTES FOR CHATO VOTES FOR
Before us is a Petition for Certiorari and Prohibition with Prayer for the PANOTES
Issuance of a Temporary Restraining Order and/or Writ of Prohibitory
Injunction1 assailing the Decision2 rendered on October 15, 2012 and Municipalities Per Election Gain or Per Election Per Physical
Resolution3 issued on December 3, 2012 by the House of Representatives
Electoral Tribunal (HRET) in HRET Case No. 10-040 (EP). The Decision
Returns Per Physical (Loss) Returns Count
dated October 15, 2012 and Resolution dated December 3, 2012 denied
herein petitioner Liwayway Vinzons-Chatos (Chato) electoral protest filed
before the HRET to challenge the proclamation of herein respondent, Elmer (ERs) Count
Panotes (Panotes), as the duly elected Representative of the Second District
of Camarines Norte. Basud 1,735 1,891 156 3,067 2,242

Daet 3,337 3,704 367 5,229 3,186

In the May 10, 2010 elections, Chato and Panotes both ran for the
congressional seat to represent the Second District of Camarines Norte. On
Mercedes 779 779 0 1,573 1,573
May 12, 2010, Panotes was proclaimed as the winner for having garnered
51,704 votes. The votes cast for Chato totalled 47,822. Vinzons 1,628 1,623 (5) 3,224 3,217

On May 24, 2010, Chato filed an electoral protest claiming that in four of the
seven municipalities4 comprising the Second District of Camarines Norte, the
following irregularities occurred: (a) the Precinct Count Optical Scan (PCOS)
machines rejected and failed to count the votes, which if manually counted
and visually appreciated, were in fact validly cast for her; (b) the PCOS
machines broke down in some clustered precincts (CPs) and the ballots were
inserted in contingency machines at later times rendering uncertain the
actual inclusion of the votes in the final tally; (c) the protocols prescribed by
the Commission on Elections (COMELEC) relative to the installation of the
PCOS machines and Canvassing and Consolidation System (CCS), counting
of ballots, canvassing and transmission of results, and closing of the voting
were either not followed or modified making it possible for the tampering and
manipulation of the election results; (d) several compact flash (CF) cards in
the PCOS machines were reconfigured on the eve of the May 10, 2010
elections; (e) there were errors or lapses in transmitting results from several
PCOS machines to the CCS of the Municipal Boards of Canvassers
(MBOCs) resulting to the need to manually insert CF cards into the CCS, but
in some instances, the insertions were made after significant and
Total 7,479 7,997 518 13,093 10,218
Panotes filed an Urgent Motion to Suspend Proceedings with Motion for
Preliminary Hearing to Determine the Integrity of the Ballots and Ballot Boxes
Used in the May 10, 2010 Elections in the Contested Precincts of the Second
District of Camarines Norte and to Direct the Printing of the Picture Images of
the Ballots of the Subject Precincts.7 Panotes claimed that in Daet and
Basud: (a) the top cover of some of the ballot boxes were loose, and ballots,
Minutes of Voting (MOV) and ERs can be taken out; (b) when keys were
inserted into the padlocks of the ballot boxes, the upper portion of the locks
disconnected from the bodies indicating tampering; (c) the packing tape
seals, which he was able to put in some of the ballot boxes, were broken or
cut, leading to the conclusion that the boxes had been opened prior to the
initial revision; (d) some self-locking security seals were not properly
attached; and (e) the contents of some of the ballot boxes, such as the MOV
and ERs were either missing or in disarray, with the ballots unnecessarily
folded or crumpled in the CPs, where the votes cast for him substantially
decreased as per physical count when compared to the figures found in the on the other hand, was not able to present sufficient evidence to prove that
ERs. the integrity of the CF cards was not preserved.

On March 22, 2012, the HRET issued Resolution No. 12-079 directing the Going back to HRET Case No. 10-040 (EP), in the 160 protested CPs, there
continuance of the revision of ballots in 75% of the contested CPs. The were substantial variances in the figures per machine count as indicated in
proceeding commenced on May 2, 2012 and ended on May 9, 2012. The the ERs, on one hand, and per physical count, on the other, in a total of 69
results were:8 CPs, 23 of which were in Basud and 46 in Daet. The HRET then tediously
compared the paper ballots that were fed to the PCOS machine in these 69
VOTES FOR CHATO VOTES FOR CPs with the corresponding PIBs in the CF cards to resolve the
PANOTES discrepancies. The bar codes at the bottom right of the PIBs were compared
with those indicated in the paper ballots. However, the HRET found that
while the name of Chato was shaded in some of the paper ballots objected to
Municipalities Per Election Gain or Per Election Per Physical by Panotes,
Gain or there were no votes (NV) for congressional representative
reflected in the PIBs.11 Notably, the number of ballots gained by Chato during
Returns Per Physical (Loss) Returns Count the physical
(Loss) count of votes is directly proportional with the number of paper
ballots for her objected to by Panotes with NV on the congressional
(ERs) Count representative line per PIBs.12 The HRET likewise observed that per physical
count, there was a substantial increase in the number of stray votes by
Basud 4,792 5,259 467 4,812 3,163 reason of over voting (OV) for congressional representative. The decryption
(1,649)
and copying of the PIBs revealed that there were only a few PIBs with OV for
Daet 12,569 13,312 743 12,856 9,029 the said position.13 Panotes loss per physical count is more or less
(3,827)
proportionate with the number of ballots, which Chato claimed as having
exhibited 14
Mercedes 8,553 8,554 1 6,166 6,166 0 stray over voting for the congressional representative line.

Vinzons 5,085 5,087 2 4,883 4,883 Chato and

0 Panotes presented their respective evidence before the HRET.

Total 30,999 32,212 1,213 28,717 23,241 Among(5,476)

the evidence offered by Chato were: (a) certified true copies of the
Transcript of Stenographic Notes (TSN) of the testimony of Atty. Anne A.
Romero-Cortez15 (Atty. Cortez) on June 2, 2010 when she explicitly said
As shown above, there was a substantial discrepancy between the figures
before the Congress, acting as the Presidential and Vice Presidential Board
indicated in the ERs/Statements of Votes by Precinct (SOVPs) on one hand,
of Canvassers, that "for the municipalities of Labo, Vinzons and Basud, there
and the results of the physical count during the revision, on the other.
were CF cards that had to be replaced because they were defective"; (b) the
Thereafter, the HRET issued Resolution No. 11-208 directing the decryption
testimony of Angel Averia (Averia),16 who, during the decryption and copying
and copying of the picture image files of ballots (PIBs). The proceeding was
of the PIBs in the COMELEC premises on April 26, 2011, had allegedly
conducted within the COMELEC premises. However, Chato alleged that the
heard COMELEC Director Esther Roxas (Director Roxas) admit that there
back-up CF card for CP No. 44 of the Municipality of Daet and the CF card
was no inventory of the CF cards; (c) Panotes own admission in his
for CP No. 29 of the Municipality of Mercedes did not contain the PIBs. Chato
Opposition to the Motion to Reiterate the Continuation of Revision, dated
filed before the HRET an Urgent Motion to Prohibit the Use by Protestee of
March 22, 2011, to the effect that "the main CF card for CP 44 of the
the Decrypted and Copied Ballot Images. The HRET denied Chatos motion
Municipality of Daet is missing and it would appear that the Election Officer
through Resolution No. 11-321 issued on June 8, 2011.
submitted the back-up CF card in lieu thereof" but the "back-up CF card did
not contain the picture image of the ballots"; and (d) Panotes admission in
Panotes filed before us a petition9 assailing HRET Resolution No. 12-079. the aforesaid Opposition that "in the Municipality of Mercedes, the BEI re-
On her part, Chato instituted a petition10 challenging HRET Resolution No. zeroed the results of the elections in CP No. 29," and consequently, the PIBs
11-321. We ordered the consolidation of the two petitions, and both were for these precincts were erased from the CF cards memory.17
dismissed in a decision which we rendered on January 22, 2013. Panotes
petition was moot and academic since revision was in fact completed. Chato,
Following are among Panotes claims to establish that in order to tilt the
results of the electoral protest in Chatos favor, the paper ballots were
tampered after the canvassing, counting and transmission of the voting
results in the May 10, 2010 elections were completed: (a) the testimonies of
Philip Fabia and Danilo Sibbaluca that "the ballot boxes used in the May 10,
2010 elections could be turned upside down and the bottom portion of the
ballot box could be lifted so that the contents could be taken out";18 (b) the
reports of the HRET Revision Committees stating that in Daet and Basud,
some of the padlocks and self-locking security seals in the ballot boxes were
either missing or not properly attached, and the MOVs and ERs were
likewise nowhere to be found;19 (c) the testimony of Benjamina Camino that
during the revision, in the matched paper ballots and PIBs, the votes were
identical except those for the position of congressional representative; 20 (d)
testimony of Florivida Mago21 indicating that in the Random Manual Audit
(RMA) conducted on the same day right after the closing of the polls, the
team found that out of 420 valid votes counted by the PCOS machine, there
was none with an over-vote for the congressional seat line, and there was
only a single difference between the automated result and the manual
count;22 (e) in direct contrast with the RMA teams findings, in the revision
report for CP No. 23 of Basud, 99 ballots reflected over-votes for the
congressional seat line;23 (f) the main CF card for CP No. 44 of Daet had
already been retrieved from the ballot box of the municipalitys MBOC and its
contents decrypted;24 (g) even granting for arguments sake that in
Mercedes, the BEI re-zeroed the results of the elections in CP No. 29, this
has no bearing since the physical count of the ballots jived with the results
indicated in the ER;25 (h) Chato took out of context Atty. Cortezs testimony
before the Congress because what the latter stated was that the defective
CF cards were replaced with working ones on May 10, 2010 and not after; 26
and (i) Atty. Cortez and Director Roxas were not presented as witnesses
before the HRET, hence, the statements ascribed to them by Chato do not
bear weight.27
The HRET found that out of the 160 contested CPs, there were 91 without
substantial variances between the results of the automatic and the manual
count. However, in 69 CPs in Basud and Daet, the variances were glaring.
On October 15, 2012, the HRET rendered the herein assailed decision
dismissing Chatos electoral protest based on the following grounds:
The settled rule in election contests is that the ballots themselves constitute
the best evidence of the will of the voters, but the ballots lose this character
and give way to the acceptance of the election returns when it has been
shown that they have been the subject of tampering, either by substituting
them with other official or fake ballots, or by substantially altering or changing
their contents.
Consequently, the votes determined after the revision in the foregoing 69
CPs in Basud and Daet, which yielded a reversal of votes, cannot be relied
upon, as they do not reflect the true will of the electorate. Hence, the Tribunal
has to rely on what is reflected in the election returns and/or statement of
votes by precinct[,] the same being the best evidence of the results of the
election in said precincts in lieu of the altered ballots.
xxxx
The votes of the parties per physical count in all the 120 [sic] protested CPs
in the concerned district are 40,209 for protestant Chato and 33,459 for
protestee Panotes.
Considering that 69 CPs have substantial variances, the Tribunal decided to
disregard the ballots therein, i.e., 18,535 for protestant and 10,858 for
protestee, and to consider, instead, the results in the election returns, i.e.,
16,802 for protestant and 19,202 for protestee.
Hence, only the ballots in the 91 CPs without substantial variances, i.e.,
21,674 for protestant and 22,601 for protestee, had undergone appreciation
of ballots. Of the ballots appreciated, the Tribunal rejected two (2) ballots for
protestant and two (2) ballots for protestee, while it admitted 176 ballots
claimed by the protestant and 183 claimed by the protestee.
The votes of the parties in the uncontested municipalities are 9,338 for
protestant and 9,894 for protestee.
Accordingly, the parties votes, after recount and appreciation and
examination of the evidence presented in the 160 protested CPs as well as in
the uncontested municipalities, are summarized below:
[Chato] [Panotes]
Votes in the 91 revised 21,674 22,601
protested CPs without SV
[substantial variance] per
recount and appreciation
 On December 3, 2012, the HRET denied Chatos motion for reconsideration
Add: Votes per ER/SOVP 16,802 19,202
to the Decision dated October 15, 2012.
in 69 revised protested
Central to the resolution of the instant petition are the issues of whether or
not the HRET committed grave abuse of discretion when it:
CPs with SV
(a) disregarded the results of the physical count in the 69 CPs when the
Less: Rejected Ballots (2) (2)
HRET had previously held that the integrity of the ballot boxes was preserved
and that the results of the revision proceedings can be the bases to overturn
Objected to in the 91 those reflected in the election returns;

revised protested CPs (b) resorted to the PIBs, regarded them as the equivalent of the paper
ballots, and thereafter ruled that the integrity of the latter was doubtful;
without SV
(c) held that Chato had failed to prove by substantial evidence that the CF
Add: Admitted PCOS 176 183 cards used in the May 10, 2010 elections were not preserved.

Rejected Ballots Claimed In support of the instant petition, Chato reiterates her allegations in the
proceedings before the HRET. She stresses that in the Order29 issued on
in the 91 revised protested April 10, 2012, the HRET ruled that as regards the conditions of the ballot
boxes in Basud and Daet, the self-locking security seals and padlocks were
CPs without SV attached and locked, hence, "there was substantial compliance with statutory
safety measures to prevent reasonable opportunity for tampering with their
Add: Votes in the 9,338 9,894 contents x x x."30 Chato likewise argues that under Republic Act (R.A.) No.
9369,31 the May 10, 2010 Automated Election System was paper-based32
uncontested and the PIBs are not the official ballots. Further, under Section 15 of R.A. No.
8436, what should be regarded as the official ballots are those printed by the
National Printing Office (NPO) and/or the Bangko Sentral ng Pilipinas (BSP),
municipalities
or by private printers contracted by the COMELEC in the event that the NPO
and the BSP both certify that they cannot meet the printing requirements.
Equals: Total votes of the 47,988 51,878
Chato once again referred to the statements allegedly made by Atty. Cortez,
Averia and Panotes himself to prove that serious doubt exists relative to the
parties in the integrity of the CF cards used in the May 10, 2010 elections.

congressional district
Winning Margin of
Protestee
The foregoing results of revision and appreciation of ballots in the protested
CPs, and the evidence of the parties indicate that protestees proclamation
margin of 3,882 votes increased by eight (8).28 (Citations omitted)
Panotes refutes the foregoing in his Comment33 to the instant petition. He
points out that in Liwayway Vinzons-Chato v. HRET and Elmer Panotes,34 we
3,890 sustained the PIBs as the functional equivalent of paper ballots, thus, they
may be used for revision purposes. Further, the HRET had categorically
ruled in the herein assailed decision that the physical ballots were altered or
tampered, hence, not reflective of the true will of the electorate. Besides,
Chatos electoral protest was flimsily anchored on the alleged missing CF
card in CP No. 44 of Daet. Panotes emphasizes that the CF card had already
been retrieved. Even if it were not found, there are 14 CPs in Daet and one
incident of a missing CF card cannot create a strong presumption that all
such cards in the entire Second District of Camarines Norte had been
tampered.
There is no merit in the instant petition.
Chato posits that since the HRET, in its Order dated April 10, 2012, had
already considered the conditions of the ballot boxes as indicative of having
substantially complied with "statutory safety measures to prevent reasonable
opportunity for tampering with their contents",35 its subsequent disregard of
the results of the physical count in the 69 CPs in Daet and Basud was tainted
with grave abuse of discretion.
We do not agree.
It bears stressing that the HRETs Order dated April 10, 2012 was issued to
resolve Panotes motion to suspend the continuance of the revision
proceedings in 75% of the contested CPs. The HRETs findings then anent
the integrity of the ballot boxes were at the most, preliminary in nature. The
HRET was in no way estopped from subsequently holding otherwise after it
had the opportunity to exhaustively observe and examine in the course of the
entire revision proceedings the conditions of all the ballot boxes and their
contents, including the ballots themselves, the MOV, SOVs and ERs.
We need not belabor the second and third issues raised herein as the same
had been resolved in the following wise in Liwayway Vinzons-Chato v. HRET
and Elmer Panotes36 and Elmer E. Panotes v. HRET and Liwayway Vinzons-
Chato:37
Section 2(3) of R.A. No. 9369 defines "official ballot" where AES (Automated
Election System) is utilized as the "paper ballot, whether printed or generated
by the technology applied, that faithfully captures or represents the votes
cast by a voter recorded or to be recorded in electronic form."
xxxx
The May 10, 2010 elections used a paper-based technology that allowed
voters to fill out an official paper ballot by shading the oval opposite the
names of their chosen candidates. Each voter was then required to
personally feed his ballot into the Precinct Count Optical Scan (PCOS)
machine which scanned both sides of the ballots simultaneously, meaning, in
just one pass. As established during the required demo tests, the system
captured the images of the ballots in encrypted format which, when
decrypted for verification, were found to be digitized representations of the
ballots cast.
As such, the printouts thereof PIBs are the functional equivalent of the paper
ballots filled out by the voters and, thus, may be used for purposes of
revision of votes in an electoral protest.
xxxx
x x x The HRET found Chatos evidence insufficient. The testimonies of the
witnesses she presented were declared irrelevant and immaterial as they did
not refer to the CF cards used in the 20 precincts in the Municipalities of
Basud and Daet with substantial variances x x x.
To substitute our own judgment to the findings of the HRET will doubtless
constitute an intrusion into its domain and a curtailment of its power to act of
its own accord on its evaluation of the evidentiary weight of testimonies
presented before it. Thus, for failure of Chato to discharge her burden of
proving that the integrity of the questioned cards had not been preserved, no
further protestations to the use of the picture images of the ballots as stored
in the CF cards should be entertained. (Citations omitted)
Chato attempts to convince us that the integrity of the physical ballots was
preserved, while that of the CF cards was not. As mentioned above, the
integrity of the CF cards is already a settled matter. Anent that of the physical
ballots, this is a factual issue which calls for a re-calibration of evidence.
Generally, we do not resolve factual questions unless the decision, resolution
or order brought to us for review can be shown to have been rendered or
issued with grave abuse of discretion.
In Dueas, Jr. v. HRET,38 we defined grave abuse of discretion, viz:
It is such capricious and whimsical exercise of judgment which is tantamount
to lack of jurisdiction. Ordinary abuse of discretion is insufficient. The abuse
of discretion must be grave, that is, the power is exercised in an arbitrary or
despotic manner by reason of passion or personal hostility. It must be so
patent and gross as to amount to evasion of positive duty or to a virtual
refusal to perform the duty enjoined by or to act at all in contemplation of the
law. In other words, for a petition for certiorari to prosper, there must be a
clear showing of caprice and arbitrariness in the exercise of discretion. There
is also grave abuse of discretion when there is a contravention of the
Constitution, the law or existing jurisprudence. x x x.39 (Citation omitted)
In the case at bar, the HRET disposed of Chatos electoral protest without
grave abuse of discretion. The herein assailed decision and resolution were
rendered on the bases of existing evidence and records presented before the
HRET.
WHEREFORE, IN VIEW OF THE FOREGOING, the instant petition is
DISMISSED for lack of merit. The Decision dated October 15, 2012 and
Resolution dated December 3, 2012 of the House of Representatives
Electoral Tribunal in HRET Case No. 10-040 (EP) are AFFIRMED.

SO ORDERED.
 G.R. No. 204828 December 3, 2013 On November 4, 2010, Co filed an election protest before the MeTC. He
claimed, among other things, that the Board of Election Tellers (BET) did not
JAIME C. REGIO, Petitioner, follow COMELEC Resolution No. 9030, as it: (1) did not permit his supporters
vs. to vote; (2) allowed "flying voters" to cast votes; and (3) ignored the rules on
COMMISSION ON ELECTIONS and RONNIE C. CO, Respondents. appreciation of ballots, resulting in misreading, miscounting, and
misappreciation of ballots. Additionally, he alleged that Regio committed
vote-buying, and engaged in distribution of sample ballots inside the polling
DECISION
centers during the day of the elections.2
VELASCO, JR., J.:
Of the seven clustered precincts (CPs) initially protested, Co would later
exclude CP Nos. 1304A and 1305A from the protest. During the preliminary
The Case conference, the trial court allowed the revision of ballots. The revision of
ballots occurred on January 13-14, 2011.3 Per the report of the revision
This petition for certiorari filed under Rule 64, in relation to Rule 65, seeks to committee, the number of votes obtained by both candidates in the contested
nullify and set aside the Resolution dated December 7, 2012 of the precincts, as shown below, indicated a substantial recovery on the part of
Commission on Elections (COMELEC_ EN Banc in EAC (BRGY-SK) No. Co:
161-2011. The assailed Resolution reversed and set aside the Resolution of
the COMELEC First Division dated August 23, 2011, which, in turn, affirmed 1wphi1
the May 4, 2011 Decision in Election Case No. 02480-EC of the Metropolitan
Trial Court (MeTC), Branch 4 in Manila.
Candidate Clustered Precinct Number Tot
The Facts
1wphi1 1302A 1303A 1304A 1305A 1306A 1307A 1307B
Petitioner Jaime C. Regio (Regio) and private respondent Ronnie C. Co (Co),
among other candidates, ran in the October 25, 2010 barangay elections in
Barangay 296, Zone 28, District III of the City of Manila for the position of Co, Ronnie C. 160 -- 63 98 321
punong barangay. Immediately following the counting and canvassing of the
votes from seven clustered precincts in the adverted barangay, Regio, whoRegio, Jaime C. 86 -- 62 84 232
garnered four hundred seventy-eight (478) votes, as against the three
hundred thirty-six (336) votes obtained by Co, was proclaimed winner for the
contested post of punong barangay. The detailed tally of the votes per
precinct, as reflected in the Statement of Votes, is as follows:1 During his turn to present evidence, Co limited his offer to the revision
committee report, showing that he garnered the highest number of votes.
Regio, on the other hand, denied that the elections were tainted with
Candidate Clustered Precinct Number irregularities. He claimed that the results of the revision are products of post-
Total
elections operations, as the ballots were tampered with, switched, and
1302A 1303A 1304A 1305A 1306A 1307A 1307B altered drastically to change the results of the elections. He presented as
witnesses the following: poll watchers Evangeline Garcia, Cezar Regio, and
Ruben Merilles, who all testified that there were no instances of electoral
, Ronnie C. 76 113 48 99 336 fraud, irregularities, and anomalies during the day of the elections. Presented
too were volunteers Love Agpaoa and Romy Que, who belied allegations of
miscounting, misreading, and misappreciation of the ballots during the
gio, Jaime C. 171 151 73 83 478 counting, and Dominador Dela Cruz, Chairperson of the BET for CP Nos.
1302A/1303A, as well as Erlina Hernandez, Chairperson of the BET for CP
No. 1306A, who both testified that they followed the rules and regulations in
conducting the elections in Barangay 296, and that each ballot was correctly
tabulated.4
The results of the revision notwithstanding, the trial court, in its Decision of
May 4, 2011, dismissed Cos protest and declared Regio as the duly-elected
punong barangay of Barangay 296. It disposed of the case, as follows:
WHEREFORE, the proclamation of protestee Jaime C. Regio as the duly
elected "Punong Barangay" or "Barangay Chairman" of Barangay 296,
District III, Manila by the Barangay Board of Canvassers is affirmed by this
court. The election protest filed by the protestant Ronnie C. Co is dismissed
for lack of merit.5
According to the trial court, before it can accord credence to the results of the
revision, it should first be ascertained that the ballots found in the box during
the revision are the same ballots deposited by the voters. In fine, the court
"should first be convinced that the ballots counted during the revision have
not been tampered with before it can declare the ballots a) as superior
evidence of how the electorate voted, and b) as sufficient evidence to set
aside the election returns. For the ballots to be considered the best evidence
of how the voters voted, their integrity should be satisfactorily established."6
Invoking Rosal v. COMELEC,7 the trial court ruled that Co failed to
sufficiently show that the integrity of the contested ballots had been
preserved. It then cited the presumption that election returns are genuine,
and that the data and information supplied by the board of election inspectors
are true and correct.8
The trial court said:
A closer scrutiny of the premise made by the protestant will reveal that he is
trying to prove the misreading, miscounting, and misappreciation of ballots by
introducing as evidence the marked difference of the results of the revision
and of the results in the election returns. This premise is too presumptuous.
The marked difference cannot be used to prove the misreading, miscounting,
and misappreciation of ballots because the misreading, miscounting, and
misappreciation of ballots is precisely what the protestant needs to prove to
justify the marked difference in the results. Prudence dictates that the
protestant should first explain where this huge discrepancy is coming from
before using it as evidence. In other words, the misreading, miscounting, and
misappreciation of ballots should be proven by other independent evidence.
Without any evidence, the allegation of misreading, miscounting, and
misappreciation of ballots remains a mere allegation without any probative
value.9
Traversing the allegations of post-elections tampering, the trial court rejected
Cos allegation that the ballot boxes were properly locked and sealed. In fact,
the trial court said, the envelope containing the ballots for CP Nos.
1302A/1303A was glued on both sides, prompting protestees revisor to
comment that the envelope appears to be re-pasted and tampered. In CP
No. 1306A, the report stated that the ballots were not placed in a sealed
envelope.10 Corollarily, the trial court stated the observation that Regio has
presented credible witnesses to prove that there were no irregularities or
anomalies during the casting and counting of votes. Aggrieved, Co filed an
appeal before the COMELEC, arguing that the trial court erred:
1.) In disregarding the result of the physical count of the revised
ballots found in Precinct Nos. 1302A/1303A and 1306A;
2.) In declaring that the protestant appellant was not able to
sufficiently show that the integrity of the contested ballots in Precinct
Nos. 1302A/1303A and 1306A was preserved;
3.) In declaring that protestant-appellant was not able to overcome
the presumption of regularity of the election, counting, and
canvassing proceedings in the protested precincts of Barangay 296,
Manila;
4.) In declaring that the votes obtained by the parties in Precinct Nos.
1302A/1303A and 1306A as reflected in their respective Election
Returns are [the] true and actual results of the elections;
5.) In giving weight to the incredulous and conflicting testimonies of
the obviously biased witnesses of the protestee-appellee;
6.) In refusing to lend credence to the testimony of the expert witness
from the Commission on Elections that the ballots obtained from
Precinct Nos. 1302A/1303A and 1306A are genuine ballots; and
7.) In refusing to appreciate the contested and revised ballots for
Precinct Nos. 1302A/1303A and 1306A and the appreciation of the
contested ballots found in Precinct No. 1307A/1307B.11
In a Resolution dated August 23, 2011, the COMELEC First Division12
dismissed the appeal, noting, as the MeTC did, that Co failed to show that
the integrity of the ballots in question was in fact preserved. Echoing the trial
court, the COMELEC First Division ruled that the absence of any report or
record of tampering of the ballot boxes does not preclude the possibility of
ballot tampering.13
It also affirmed the rejection of Cos reliance on the revision committee report
as proof that no post-election tampering occurred. The COMELEC First
Division observed:
We note that protestant-appellant did not offer any evidence to prove his
claims of misreading, miscounting, and misappreciation of the ballots; he
posits that the variance between the election results according to the election
documents and the revision of the ballots is in itself enough to prove his
allegations of misreading, miscounting, and misappreciation of the ballots by
the Board of Election Tellers. Protestant-appellant begs the question instead
of laying support to his claims. x x x x Since it could not divine the will of the
electorate from the ballots, the trial court had no other recourse other than to
rely on the available election documents. And, We cannot fault the trial court
for doing so when there was no question as to the election documents
authenticity and validity. Protestant-appellant harps that the election
documents are "mere by-products of the electoral fraud committed to benefit
(protestee-appellee) including but not limited to misreading, miscounting, and
misappreciation of ballots by the Chairpersons of the Board of Election
Tellers in order to increase the votes of the Protestee-Appellee and decrease
the votes that should have been properly credited to Protestant-Appellant
Co."
(emphasis in the original)
As previously mentioned, protestant-appellants assertion is specious x x x.
The records of the case is bereft of any evidence supporting protestant-
appellants claims of electoral fraud and, thus, We concur with the trial court
stating, "(w)ithout any evidence, the allegation of misreading, miscounting,
and misappreciation of ballots remains a mere allegation without probative
value."14
The COMELEC First Division noted that Co could have, but did not,
presented testimonies of witnesses to substantiate his claims of electoral
fraud, albeit he attached affidavits of various witnesses in his protest. The
affidavits, the COMELEC First Division said, asserted, in one form or
another, the electoral malfeasance or misfeasance allegedly committed by
the BET. In dismissing the arguments of Co for his failure to present
evidence, the COMELEC commented, "[I]t appears that protestant-appellant
[Co] rested on laurels after seeing the result of the physical count of the
revised ballots and the conclusion of the Technical Examination. In fine,
protestant-appellant proverbially lost the war for want of a nail."15
The fallo of the COMELEC First Division Resolution reads:
WHEREFORE, premises considered, the Commission (First Division)
RESOLVED, as it hereby RESOLVES, to DENY the protestants Appeal for
LACK OF MERIT. The Decision dated 04 May 2011 by Metropolitan Trial
Court Branch 04 City of Manila is hereby AFFIRMED.16
Co then filed a Motion for Reconsideration. In its assailed December 7, 2012
Resolution, the COMELEC En Banc17 reconsidered the August 23, 2011
Resolution of the First Division, and accordingly declared Co as the duly
elected punong barangay. Vital to the En Bancs disposition is its finding that
the ballots subjected to revision were genuine. The En Banc found:
x x x [W]e find merit in appellants motion for reconsideration. For, protestant
[Co] has sufficiently established that no untoward incident had attended the
preservation of the ballots after the termination of the proceedings of the
Board of Election Tellers or from the time the custody of the ballot boxes is
transferred from the BET to the City Treasurer and finally to the trial court.
Protestee who cried post-election fraud is duty- bound to establish that the
genuine ballots found inside the boxes were compromised and tampered at
any time during that period and before the revision. However, no such proof
has been adduced by protestee except the discrepancy between the figures
in the ERs and the physical count on revision. But then, said discrepancy
could have been caused by errors in the transposition of the numbers from
the ballots to the ERs during the canvassing and not due to tampering. As
earlier intimated, the discrepancy could be attributed to ER manipulation
during the canvassing and not because of the tampering of the ballots which
were already found by an expert and independent body to be genuine and
authentic.18
The fallo of the COMELEC En Bancs Resolution reads:
WHEREFORE, premises considered, the Commission RESOLVED as it
hereby RESOLVES to reconsider its Resolution dated August 23, 2011 and
proclaim protestant-appellant as the duly elected Punong Barangay of
Barangay 296, District III, Manila.19
Thus, the present recourse, on the argument that the COMELEC En Banc
committed grave abuse of discretion amounting to lack or excess of
jurisdiction when it arbitrarily set aside the Decision of the MeTC and the
Resolution of the COMELEC First Division, in the choice between the
revision results in the protested precincts and the official vote count recorded
in the election returns. Petitioner further argues that the COMELEC gravely
abused its discretion when it demanded from protestee direct proof of actual
tampering of ballots to justify consideration of the use of the election returns
in determining the winning candidate in the elections. In fine, petitioner
questions the ruling of the COMELEC giving precedence to the results of the
revision over the official canvassing results.
 The Issues
I. WHETHER THE RESPONDENT COMMISSION COMMITTED GRAVE
ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION IN RULING THAT PRIVATE RESPONDENT CO HAD
SUCCESSFULLY DISCHARGED THE BURDEN OF PROVING THE
INTEGRITY OF THE BALLOTS SUBJECTED TO REVISION. II. WHETHER
THE RESPONDENT COMMISSION COMMITTED GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN
REVERSING THE RULING OF THE COMELEC FIRST DIVISION, TO THE
EFFECT THAT PETITIONER REGIO IS THE DULY-ELECTED PUNONG
BARANGAY.
The Courts Ruling
At the outset, it must be noted that the protest case is dismissible for being
moot and academic. A case becomes moot when there is no more actual
controversy between the parties or no useful purpose can be served in
passing upon the merits. Generally, courts will not determine a moot question
in a case in which no practical relief can be granted.20
In Malaluan v. COMELEC,21 this Court settled the matter on when an
election protest case becomes moot and academic:
When the appeal from a decision in an election case has already become
moot, the case being an election protest involving the office of mayor the
term of which had expired, the appeal is dismissible on that ground, unless
the rendering of a decision on the merits would be of practical value.
(emphasis added)
In the case now before the Court, the position involved is that of a punong
barangay. The governing law, therefore, is Republic Act No. (RA) 9164, as
amended by RA 9340. Sec. 4 of the law states:
Sec. 4. Assumption of Office. - The term of office of the barangay and
sangguniang kabataan officials elected under this Act shall commence on
August 15, 2002, next following their elections. The term of office of the
barangay and sangguniang kabataan officials elected in the October 2007
election and subsequent elections shall commence at noon of November 30
next following their election. (emphasis added)
The court takes judicial notice of the holding of barangay elections last
October 28, 2013. Following the elections, the new set of barangay officials
already assumed office as of noon of November 30, 2013. It goes without
saying, then, that the term of office of those who were elected during the
October 2010 barangay elections also expired by noon on November 30,
2013. In fine, with the election of a new punong barangay during the October
28, 2013 elections, the issue of who the rightful winner of the 2010 barangay
elections has already been rendered moot and academic. Notwithstanding
the mootness of the case, We find the need to decide the petition on its
merits, in view of the finding of the COMELEC En Banc that protestant Co
should have been declared the winner for the post of punong barangay for
the term 2010-2013. We find that the grave abuse of discretion committed by
the COMELEC En Banc, specifically in ignoring the rules on evidence, merits
consideration. Still in line with the Courts decision in Malaluan22 to the effect
that the Court can decide on the merits a moot protest if there is practical
value in so doing, We find that the nullification of the COMELEC En Bancs
Resolution is in order, due to its gross contravention of established rules on
evidence in election protest cases. We shall discuss the issues jointly,
related as they are to the finding of the COMELEC En Banc giving primacy to
the results of the revision proceedings over the results of the canvassing as
reflected in the election returns.
The doctrine in Rosal v. COMELEC23 and considering the results of the
revision vis--vis the results reflected in the official canvassing In Rosal, this
Court summarized the standards to be observed in an election contest
predicated on the theory that the election returns do not accurately reflect the
will of the voters due to alleged irregularities in the appreciation and counting
of ballots. These guiding standards are:
(1) The ballots cannot be used to overturn the official count as
reflected in the election returns unless it is first shown affirmatively
that the ballots have been preserved with a care which precludes the
opportunity of tampering and suspicion of change, abstraction or
substitution;
(2) The burden of proving that the integrity of the ballots has been
preserved in such a manner is on the protestant;
(3) Where a mode of preserving the ballots is enjoined by law, proof
must be made of such substantial compliance with the requirements
of that mode as would provide assurance that the ballots have been
kept inviolate notwithstanding slight deviations from the precise
mode of achieving that end;
(4) It is only when the protestant has shown substantial compliance
with the provisions of law on the preservation of ballots that the
burden of proving actual tampering or likelihood thereof shifts to the
protestee; and
 (5) Only if it appears to the satisfaction of the court of COMELEC
that the integrity of the ballots has been preserved should it adopt
the result as shown by the recount and not as reflected in the
election returns. In the same case, the Court referred to various
provisions in the Omnibus Election Code providing for the safe-
keeping and preservation of the ballots, more specifically Secs. 160,
217, 219, and 220 of the Code.
Rosal was promulgated precisely to honor the presumption of regularity in
the performance of official functions. Following Rosal, it is presumed that the
BET and Board of Canvassers had faithfully performed the solemn duty
reposed unto them during the day of the elections. Thus, primacy is given to
the official results of the canvassing, even in cases where there is a
discrepancy between such results and the results of the revision
proceedings. It is only when the protestant has successfully discharged the
burden of proving that the re-counted ballots are the very same ones counted
during the revision proceedings, will the court or the Commission, as the
case may be, even consider the revision results. Even then, the results of the
revision will not automatically be given more weight over the official
canvassing results or the election returns. What happens in the event of
discrepancy between the revision results and the election returns is that the
burden of proof shifts to the protestee to provide evidence of actual
tampering of the ballots, or at least a likelihood of tampering. It is only when
the court or the COMELEC is fully satisfied that the ballots have been well
preserved, and that there had been no tampering of the ballots, that it will
accord credibility to the results of the revision. In Varias v. COMELEC, the
Court said:
The Rosal ruling, to be sure, does not involve issues merely related to the
appreciation or calibration of evidence; its critical ruling is on the propriety of
relying on the revision of ballot results instead of the election returns in the
proclamation of a winning candidate. In deciding this issue, what it notably
established was a critical guide in arriving at its conclusion the need to
determine whether the court or the COMELEC looked at the correct
considerations in making its ruling.24 This Court had long stated that
"[u]pholding the sovereignty of the people is what democracy is all about.
When the sovereignty of the people expressed thru the ballot is at stake, it is
not enough for this Court to make a statement but it should do everything to
have that sovereignty obeyed by all. Well done is always better than well
said."25
This is really what the Rosal doctrine is all about. The Rosal doctrine ensures
that in election protest cases, the supreme mandate of the people is
ultimately determined. In laying down the rules in appreciating the conflicting
results of the canvassing and the results of a revision later made, the Court
has no other intention but to determine the will of the electorate. The Rosal
doctrine is also supplemented by A.M. No. 07-4-15-SC,26 establishing the
following disputable presumptions:
SEC. 6. Disputable presumptions. - The following presumptions are
considered as facts, unless contradicted and overcome by other evidence:
(a) On the election procedure: (1) The election of candidates was held on the
date and time set and in the polling place determined by the Commission on
Elections; (2) The Boards of Election Inspectors were duly constituted and
organized; (3) Political parties and candidates were duly represented by
pollwatchers; (4) Pollwatchers were able to perform their functions; and (5)
The Minutes of Voting and Counting contains all the incidents that transpired
before the Board of Election Inspectors. (b) On election paraphernalia: (1)
Ballots and election returns that bear the security markings and features
prescribed by the Commission on Elections are genuine; (2) The data and
information supplied by the members of the Boards of Election Inspectors in
the accountable forms are true and correct; and (3) The allocation, packing
and distribution of election documents or paraphernalia were properly and
timely done. (c) On appreciation of ballots: (1) A ballot with appropriate
security markings is valid; (2) The ballot reflects the intent of the voter; (3)
The ballot is properly accomplished; (4) A voter personally prepared one
ballot, except in the case of assistors; and (5) The exercise of ones right to
vote was voluntary and free.
Private respondent Co has not proved that the integrity of the ballots has
been preserved Applying Rosal, viewed in conjunction with A.M. No. 07-4-
15-SC, this Court rules that the COMELEC En Banc committed grave abuse
of discretion in ruling that private respondent had successfully discharged the
burden of proving that the ballots counted during the revision proceedings
are the same ballots cast and counted during the day of the elections. That is
the essence of the second paragraph in the Rosal doctrine. It is well to note
that the respondent Co did not present any testimonial evidence to prove that
the election paraphernalia inside the protested ballot boxes had been
preserved. He mainly relied on the report of the revision committee. There
was no independent, direct or indirect, evidence to prove the preservation of
the ballots and other election paraphernalia. This leads Us to no other
conclusion but that respondent Co failed to discharge his burden under the
Rosal doctrine. With no independent evidence to speak of, respondent Co
cannot simply rely on the report of the revision committee, and from there
conclude that the report itself is proof of the preservation of the ballots. What
he needs to provide is evidence independent of the revision proceedings.
Without any such evidence, the Court or the COMELEC, as the case may be,
will be constrained to honor the presumption established in A.M. No. 07-4-
15-SC, that the data and information supplied by the members of the Boards
of Election Inspectors in the accountable forms are true and correct.
Respondent Co admits having, under the Rosal doctrine, the burden of
proving the preservation of the ballots, and corollarily, that their integrity have
not been compromised before the revision proceedings. He, however, argues
that he had successfully discharged that burden. And how? First, he pointed
out that from the moment the various BETs placed the counted official ballots
inside the ballot boxes until they were transported for canvassing, and until
they were transmitted to the Election Officer/City Treasurer of Manila for
storage and custody, no irregularities or ballot-box snatching were reported;
neither was there any news or record of ballot box tampering in the protested
precincts. Second, no untoward incident or irregularity which may taint or
affect the integrity of the ballot boxes was ever reported when they were
transported to the storage area of the trial court. Third, the storage place of
the ballot boxes was at all times tightly secured, properly protected, and well
safeguarded. Fourth, all the protested ballot boxes were properly locked and
sealed. Fifth, the petitioner never questioned or raised any issue on the
preservation of the integrity of the protested ballot boxes. And sixth, the
Technical Examination Report signed by the COMELEC representative
confirmed the genuineness, authenticity, and integrity of all the ballots found
during the revision.27
We hold, however, that the foregoing statements do not, by themselves,
constitute sufficient evidence that the ballots have been preserved.
Respondent Co cannot simply rely on the alleged absence of evidence of
reports of untoward incidents, and from there immediately conclude that the
ballots have been preserved. What he should have presented are concrete
pieces of evidence, independent of the revision proceedings that will tend to
show that the ballots counted during the revision proceedings were the very
same ones counted by the BETs during the elections, and the very same
ones cast by the public. He cannot evade his duty by simply relying on the
absence of reports of untoward incidents that happened to the ballot boxes.
At best, this reliance on the condition of the ballot boxes themselves is
speculative; at worst, it is self-serving. Without presenting to the court any
evidence outside of the proceedings, respondent Co as protestant may
simply claim that the ballot boxes themselves are the proof that they were
properly preserved. This goes contrary to the doctrine in Rosal.
The respective custodians of the ballot boxes, from the time they were used
in the elections until they were delivered to the court, were not, to stress,
presented in court. They could have testified as to the security afforded the
ballot boxes while in their custody. Moreover, no witness at all was presented
by respondent Co during the proceedings in the trial court. The Court
reminds respondent Co that the trial courts consideration of the case is
confined to whatever evidence is presented before it. This is amply stated in
Rule 13, Sec. 2 of A.M. No. 07-4-15-SC:
Sec. 2. Offer of evidence. The court shall consider no evidence that has not
been formally offered.1wphi1 Offer of evidence shall be done orally on the
last day of hearing allowed for each party after the presentation of the last
witness. The opposing party shall be required to immediately interpose
objections thereto. The court shall rule on the offer of evidence in open court.
However, the court may, at its discretion, allow the party to make an offer of
evidence in writing, which shall be submitted within three days. If the court
rejects any evidence offered, the party may make a tender of excluded
evidence.
Unfortunately for respondent Co, the witnesses whose affidavits he attached
to his Protest were never presented during trial. While he again raised the
tenor of these affidavits in his Comment filed before Us, those cannot be
considered anymore due to his failure to present them before the trial court.
Respondent cannot simplistically insist on the consideration of said affidavits,
the trial court not having been given the opportunity to observe their
testimonies, and petitioner not having been accorded the opportunity to
cross-examine them. The fact that respondent attached the affidavits in his
Protest does not mean that the trial court is bound to consider them,
precisely because they have not been formally offered before the court. The
attachments to the Protest will not be considered unless formally offered. The
Court notes that respondent Co has offered no explanation whatsoever why
he failed to present his witnesses. Nevertheless, he would have this Court
consider as evidence their purported testimonies. This would be
incongruously unfair to petitioner, who endeavored to prove his case by
presenting evidence before the trial court. Neither can respondent Co
disclaim responsibility on the argument that the petitioner never raised as an
issue the preservation of the ballot boxes. Inherent in all election protest
cases is the duty of the protestant to provide evidence of such preservation.
The failure of the protestee to raise that as an issue will not ipso facto mean
that protestant need not present evidence to that effect. Moreover, the
Technical Examination Report, is not, without more, evidence of
preservation. The Report merely states that the ballots are genuine. What the
protestant should endeavor to prove, however, in presenting evidence of
preservation, is not that the ballots themselves are genuine or official, but
that they are the very same ones cast by the electorate. The Report cannot
possibly determine that. While it may be that the ballots themselves are
official ballots, there is still a dearth of evidence on whether or not they were
the same official ballots cast by the public during the elections. The Report,
therefore, cannot be considered as evidence of the preservation, as required
by Rosal. The fact of preservation is not, as respondent Co claims,
"incontrovertible." In fact, there is total absence of evidence to that effect.
The incontrovertible fact is that private respondent, during the proceedings
before the trial court, did not present any independent evidence to prove his
claim. Without any independent evidence, the trial court, the COMELEC, as
well as this Court, is constrained to affirm as a fact the disputable
presumption that the ballots were properly counted during the counting and
canvassing of votes. In sum, We find that the COMELEC gravely abused its
discretion in ruling that private respondent had discharged the burden of
proving the integrity of the ballots. We rule, on the contrary, that there is utter
lack of evidence to that effect.

Petitioner need not prove actual tampering of the ballots Corollarily, the
COMELEC En Banc had ruled that petitioner, as protestee, failed to adduce
evidence that the ballots found inside the ballot boxes were compromised
and tampered. This strikes us as baseless and a clear departure from the
teachings of Rosal.

The duty of the protestee in an election contest to provide evidence of actual

tampering or any likelihood arises only when the protestant has first
successfully discharge the burden or providing that the ballots have been
secured to prevent tampering or susceptibility of charge, abstraction or
substitution. Such need to present proof of tampering did not arise since
protestant himself failed to provide evidence of the integrity of the ballots.

A candidate for a public elective position ought to familiarize himself with

election laws, pertinent jurisprudence, and COMELEC resolutions, rules and
regulations. Alternatively, he should have an experienced and
knowledgeable election lawyer to guide him on the different aspects of
election. Sans comment legal advice and representation a victory in the
elections may turn out to be a crushing defeat for the candidate who actually
got the nod of the electorate. Unfortunately for respondent Co, he committed
several miscues that eventually led to his debacle in the instant election
protest.

WHEREFORE, premises considered, this Petition for Certiorari is

GRANTED. The Resolution dated December 7, 2012 of the COMELEC En
Banc in EAC (BRGY-SK) No. 161-2011 is hereby NULLIFIED and SET
ASIDE. The Resolution of the COMELEC First Division dated August 23,
2011, affirming the Decision in Election Case No. 02480-EC of the MeTC.
Branch 4 in Manila is hereby REINSTATED.

SO ORDERED.
G.R. No. L-107016 March 11, 1994
DEVELOPMENT BANK OF THE PHILIPPINES, VIVENCIO MACAPAGAL,
ALFREDO CASAL, EDUARDO MENDOZA, ADORACION GARCIA,
RODEL MAGNAYON, ROSARIO ELEP, MA. ANTONIO REBUENO, JOSE
RIVERA, M. SAPALICIO and G. ROJAS, petitioners,
vs.
COMMISSION ON AUDIT, respondent.
Office of the Legal Counsel for petitioners.
The Solicitor General for respondent.
BIDIN, J.:
This petition for certiorari seeks the reversal of the May 13, 1992 decision of
respondent Commission on Audit (COA) disallowing the amount of
P246,539.25 representing payment of customs duties and taxes for one (1)
unit of KVA Uninterruptible Power Supply (UPS) purchased by petitioner
Development Bank of the Philippines (DBP) at a public bidding conducted by
DBP itself.
On September 13, 1988 the Procurement Committee of DBP conducted a
public bidding for one (1) unit of Uninterruptible Power Supply (UPS). Of the
eight (8) suppliers who participated in the bidding, four (4) were disqualified
outright for failure to submit the required bidder's bond. The remaining four
(4) bidders were subjected to an evaluation process under the "must" criteria
to determine whether the unit offered by the bidders complies with DBP's
specifications. Under this evaluation process, only two (2) bidders qualified,
namely: Paris-Manila Trading Corporation (Paris-Manila), and Voltronics
Industrial Corporation (Voltronics). These bidders were further evaluated
under the "wants" category which has the following criteria: (a) delivery time;
(b) maintenance strategy; (c) cost; (d) manufacture support; and (e) company
profile. Under this category, Paris-Manila got a rating of 75.02% while
Voltronics got a rating of 78.75%. With respect to the amount of bids, Paris-
Manila offered a bid in the amount of P2,493,000.00; Voltronics, on the other
hand, offered P1,190,000.00 exclusive of customs duties and taxes at
P246,539.25 or a total bid price of P1,436,539.25.
On the basis of a thorough evaluation conducted, the Special Technical
Committee recommended to the DBP Vice Chairman that the UPS be
purchased from Voltronics. In this connection, DBP submitted all the bidding
documents to the Corporate Auditor for pre-audit pursuant to COA Circular
No. 86-257. After a review of the documents, then Corporate Auditor Elisa C.
Gervasio issued a reply finding the subject transaction to be "in order" but
with a corresponding observation regarding customs duties and taxes to wit:
In our review of bidding documents for the purchase of one
(1) unit Uninterruptible Power Supply System, we found the
proposed Purchase Order No. 137 dated October 14, 1988
in order. We would like to invite your attention, however, for
(sic) the lack of additional provisions on the terms and
conditions in the DBP Bid Form for customs duties and taxes
for purchases of this kind. It is suggested that in future
biddings, the quotation or bid price should always mean the
total price to be paid by DBP including customs duties and/or
other charges (Rollo, p. 42).
Thereafter, DBP issued Purchase Order No. 0137 to Voltronics at the
adjusted price, i.e., P1,436,539.25 inclusive of customs duties and taxes.
In the meantime, COA Circular No. 89-299 was passed lifting the pre-audit of
government transactions. A new Corporate Auditor was also assigned to
petitioner DBP.
After a post-audit, the new Corporate Auditor sent an "Auditor's Notice to
Person's Liable" to the Chairman of DBP notifying him of the disallowance of
the amount of P246,539.25 representing customs duties and taxes and at the
same time holding him, along with the other petitioners herein, jointly and
severally liable for the aforesaid sum. DBP moved for reconsideration in a
letter-clarification dated November 2, 1990 but the same was denied. On
appeal, the Commission en banc affirmed the disallowance.
In this petition, petitioner claims that:
I RESPONDENT COMMISSION ERRED IN APPLYING THE
POST-AUDIT SYSTEM UNDER COA CIRCULAR NO. 89-
299 CONSIDERING THAT AT THE TIME OF THE
QUESTIONED BIDDING THE "LAW" IN FORCE WAS COA
CIRCULAR NO. 86-257
II RESPONDENT COMMISSION IS ESTOPPED FROM
IMPUGNING THE DECISION OF ITS DULY
CONSTITUTED REPRESENTATIVE EXERCISED IN THE
ORDINARY COURSE OF ITS FUNCTION
 III RESPONDENT COMMISSION MISAPPRECIATED
FACTS WHICH HAD THEY BEEN PROPERLY
APPRECIATED WOULD HAVE ALTERED ITS DECISION
The pivotal issue in this case hinges on whether or not the disallowance of
the payment made by DBP representing customs duties and taxes is valid.
Petitioners submit the contrary on the ground that the transaction in question
had already been approved and passed in audit in accordance with the pre-
audit system then obtaining and the later circular requiring post-audit should
not be applied retroactively.
While it is true that the applicable procedure in force at the time of the
questioned transaction was COA Circular 86-257 requiring a pre-audit, there
is nothing to preclude respondent COA from conducting a post-audit of the
already pre-audited transaction. As pointed out by the Solicitor General:
A pre-audit is an examination of financial transactions before
their consumption or payment and is basically a special
development of the control aspect of accountancy as well as
an integral part of the accounting and payment process.
Thus, pre-audit seeks to determine that:
1. The proposed expenditure complies with
an appropriation law or other specific
statutory authority;
2. Sufficient funds are available for the
purpose;
3. The proposed expenditure is not
unreasonable or extravagant and the
unexpended balance of appropriations
where it will be charged to is sufficient to
cover the entire amount thereof; and
4. The transaction is approved by proper
authority and the claim is duly supported by
authentic underlying evidences (COA
Journal, August 1976, p. 8) (Rollo, p. 69).
Besides, the favorable action of the then Corporate Auditor as regards the
transaction does not necessarily mean that the same was passed in audit.
Circular 86-57 provides:
V. DUTIES AND RESPONSIBILITIES OF COA OFFICIALS
AND REPRESENTATIVES
The head of the audit unit shall:
3. Act on the transaction subject to pre-audit
within twenty-four (24) hours from receipt by
his Office of the pertinent
vouchers/documents. The action herein
required does not necessarily mean
approval or allowing in audit.
More importantly, Article IX (D) Section 2(1) of the Constitution expressly
grants respondent Commission the power to conduct a post-audit, to wit:
Sec. 2. (1) The Commission on Audit shall have the power,
authority, and duty to examine, audit, and settle all accounts
pertaining to the revenue and receipts of, and expenditures
or uses of funds and property, owned or held in trust by, or
pertaining to, the Government, or any of its subdivisions,
agencies, or instrumentalities, including government-owned
or controlled corporations with original charters, and on a
post-audit basis: (a) constitutional bodies, commissions and
offices that have been granted fiscal autonomy under this
Constitution; (b) autonomous state colleges and universities;
(c) other government-owned or controlled corporations and
their subsidiaries; and (d) such non-governmental entities
receiving subsidy or equity, directly or indirectly, from or
through the Government, which are required by law or the
granting institution to submit to such audit as a condition of
subsidy or equity . . . (emphasis supplied).
DBP is no doubt a government corporation and the question of whether COA
Circular 86-299 was retroactively applied to the subject transaction is thus of
no moment. To begin with, there was never any retroactive application of
post-audit. Regardless of the result of the pre-audit, it cannot be denied that
respondent COA is so empowered to conduct a post-audit.
It is thus erroneous for DBP to claim that respondent Commission is
estopped from questioning, in the process of post-audit, the previous acts of
its officials. Further, well-settled is the principle that estoppel does not lie
against the government (Cruz, Jr. vs. Court of Appeals, 194 SCRA 145
[1991]; Republic vs. Court of Appeals, 182 SCRA 290 [1990]), more so if
they are erroneous, let alone irregular (Republic vs. Intermediate Appellate
Court, 209 SCRA 90 [1992]; Sharp International Marketing vs. Court of
Appeals, 201 SCRA 299 [991]).
As to whether or not the result of the post-audit is proper, in this case the
disallowance of the customs duties and taxes, is another matter altogether.
In the Notice to Persons Liable, the Corporate Auditor disallowed the
payment of customs duties since "there was no quotation on this regard and
to include this further would improve the bid after the opening which privilege
was not given to other bidders" (Rollo, p. 43). On its face, it would appear
that the Auditor's reason aforequoted was based on the presumption that
petitioner DBP had no knowledge whatsoever that the price quoted by
Voltronics did not include customs duties and taxes, i.e., there was no
disclosure of such fact by Voltronics at the time of the bidding. In fact, the
question of whether or not Voltronics so informed petitioner DBP of the non-
inclusion of customs duties and taxes in its bid became the thrust of both
petitioner DBP and respondent COA's pleadings submitted before this Court.
DBP maintains that it was so informed by Voltronics in a letter dated
September 12, 1988 along with the bid form that its quotation did not include
the customs duties and taxes. Petitioner DBP insists that subsequent
communications even made reference to this letter. On the other hand,
respondent COA claims that there was no such attachment to the bid form
and if there was any, the form would have so stated. Since there was no
mention anywhere in the bid form of Voltronics or the Abstract of Bids as to
any attachment, respondent COA concludes that no September 12, 1988
letter was appended thereto.
In the light of all these contentions, it is difficult to determine with utmost
certainty the truth as to the existence of the September 12, 1988 letter at the
time of or even prior to the opening of the bids. However, inasmuch as this is
a question of fact involving an occurrence where DBP itself participated as
the party conducting the bidding, the presumption lies in favor of the latter
that such a letter did exist informing if that the quoted bid of Voltronics
excluded customs duties and taxes. Bolstering this position is a November
14, 1990 letter of the Senior Vice President of DBP for Operations addressed
to the Corporate Auditor confirming the fact that "Supplementary to the Bid
Form submitted by Voltronics Industrial Corp. (winning bidder) is a letter
dated September 12, 1988 (Annex C) specifically mentioning that its bid of
P1,190,000.00 does not include customs duties and taxes (Rollo, p. 44;
emphasis supplied). But even without the contested letter, it cannot be
denied that Voltronics did specify in its bid "DUTIES AND TAXES NOT
INCLUDED" (Rollo, p. 25). This alone would suffice to sustain the claim that
DBP was well aware of Voltronics' bid to be exclusive of the aforesaid
charges.
In this regard, the notice of disallowance which states: "(w)hen Voltronics
offered the amount of P1,190,000.00, it is understood that said amount
represents the total cost to paid (sic) by DBP upon delivery of the item, i.e.,
taxes/customs duty, handling costs" (Rollo, p. 43) deserves scant
consideration. It was based merely on the presumption that the bidders had
prior understanding of what the "total" bid price should comprise, when in
truth there was no clear-cut definition of the term conveyed to the
participating bidders. In fact, such lack of prior understanding compelled the
former Corporate Auditor, who, after pre-auditing the questioned transaction,
suggested that "in future biddings, the quotation or bid price should always
mean the total price to be paid by DBP including customs duties and/or other
charges" (Rollo, p. 42). Surely, the former Corporate Auditor would not have
found the need to define in clearer terms what "total bid price" should refer to
if it was already a settled concept to begin with.
Neither can we subscribe to the argument of respondent COA that the
allowance of the questioned amount would be tantamount to granting a
privilege to Voltronics which was not accorded to the other bidders. As far as
the use of the term "privilege" is concerned, it would be well to point out that
no such privilege was accorded to Voltronics. The then Corporate Auditor
was well aware of the non-inclusion of duties and taxes relative to the
purchase of the UPS. This notwithstanding, she found the Purchase Order to
be in order knowing that even if the duties and taxes amounting to
P246,539.25 were to be added to the bid price of P1,190,000.00, the total
selling price would still be lower by more than a million pesos than the selling
price offered by Paris-Manila. Based on the above computation and in so
allowing the payment of P246,539.25, representing custom duties and taxes,
no undue advantage could be said to have been awarded to Voltronics. And
as far as Voltronics is concerned, there is no doubt that it acted in good faith.
Secondly, Voltronics came out as the winner of the bidding only after
undergoing the evaluation process required by petitioner DBP. Hence, the
amount of the bid was not the only consideration for choosing Voltronics as
the winning bidder. It also ranked higher than Paris-Manila under the "wants"
criteria with a rating of 78.75%. Thirdly, even if the same "privilege" of
"improving" its bid after the same has been opened were accorded to the so-
called "other" bidders, only Paris-Manila would qualify as the "other"
bidder(s) since it was the only one aside from Voltronics which qualified
under the "must" criteria, the final stage of the evaluation process. All the rest
were either immediately disqualified or did not meet the standards of the
aforesaid criteria. Thus, even if Paris-Manila were afforded the opportunity to
improve its bid, considering the disparity of its bid with Voltronics' bid of
P1,436,539.25, inclusive of duties and taxes, the latter would still be the
lowest bidder.
In other words, the alleged "privilege" had little effect on the ultimate outcome
of the bidding. Inasmuch as neither Paris-Manila nor petitioner DBP was
prejudiced by allowing the exclusion of the customs duties and taxes to the
total bid price, the result of the pre-audit should be allowed to stand.

WHEREFORE, the petition is GRANTED. The decision of respondent COA

dated May 13, 1992 is hereby REVERSED and SET ASIDE. Respondent
COA is hereby DIRECTED to allow in post-audit the payment of
P246,539.25.

SO ORDERED.
G.R. No. 162224 June 7, 2007
2nd LT. SALVADOR PARREO represented by his daughter Myrna P.
Caintic, petitioner,
vs.
COMMISSION ON AUDIT and CHIEF OF STAFF, ARMED FORCES OF
THE PHILIPPINES, respondents.
DECISION
CARPIO, J.:
The Case
Before the Court is a petition for certiorari1 assailing the 9 January 2003
Decision2 and 13 January 2004 Resolution3 of the Commission on Audit
(COA).
The Antecedent Facts
Salvador Parreo (petitioner) served in the Armed Forces of the Philippines
(AFP) for 32 years. On 5 January 1982, petitioner retired from the Philippine
Constabulary with the rank of 2nd Lieutenant. Petitioner availed, and
received payment, of a lump sum pension equivalent to three years pay. In
1985, petitioner started receiving his monthly pension amounting to 13,680.
Petitioner migrated to Hawaii and became a naturalized American citizen. In
January 2001, the AFP stopped petitioners monthly pension in accordance
with Section 27 of Presidential Decree No. 16384 (PD 1638), as amended by
Presidential Decree No. 1650.5 Section 27 of PD 1638, as amended,
provides that a retiree who loses his Filipino citizenship shall be removed
from the retired list and his retirement benefits terminated upon loss of
Filipino citizenship. Petitioner requested for reconsideration but the Judge
Advocate General of the AFP denied the request.
Petitioner filed a claim before the COA for the continuance of his monthly
pension.
The Ruling of the Commission on Audit
In its 9 January 2003 Decision, the COA denied petitioners claim for lack of
jurisdiction. The COA ruled:
It becomes immediately noticeable that the resolution of the issue at hand
hinges upon the validity of Section 27 of P.D. No. 1638, as amended.
Pursuant to the mandate of the Constitution, whenever a dispute involves the
validity of laws, "the courts, as guardians of the Constitution, have the
inherent authority to determine whether a statute enacted by the legislature
transcends the limit imposed by the fundamental law. Where the statute
violates the Constitution, it is not only the right but the duty of the judiciary to
declare such act as unconstitutional and void." (Tatad vs. Secretary of
Department of Energy, 281 SCRA 330) That being so, prudence dictates that
this Commission defer to the authority and jurisdiction of the judiciary to rule
in the first instance upon the constitutionality of the provision in question.
Premises considered, the request is denied for lack of jurisdiction to
adjudicate the same. Claimant is advised to file his claim with the proper
court of original jurisdiction.6
Petitioner filed a motion for reconsideration. Petitioner alleged that the COA
has the power and authority to incidentally rule on the constitutionality of
Section 27 of PD 1638, as amended. Petitioner alleged that a direct recourse
to the court would be dismissed for failure to exhaust administrative
remedies. Petitioner further alleged that since his monthly pension involves
government funds, the reason for the termination of the pension is subject to
COAs authority and jurisdiction.
In its 13 January 2004 Resolution, the COA denied the motion. The COA
ruled that the doctrine of exhaustion of administrative remedies does not
apply if the administrative body has, in the first place, no jurisdiction over the
case. The COA further ruled that even if it assumed jurisdiction over the
claim, petitioners entitlement to the retirement benefits he was previously
receiving must necessarily cease upon the loss of his Filipino citizenship in
accordance with Section 27 of PD 1638, as amended.
Hence, the petition before this Court.
The Issues
Petitioner raises the following issues:
1. Whether Section 27 of PD 1638, as amended, is constitutional;
2. Whether the COA has jurisdiction to rule on the constitutionality of Section
27 of PD 1638, as amended; and
3. Whether PD 1638, as amended, has retroactive or prospective effect.7
 The Ruling of this Court
The petition has no merit.
Jurisdiction of the COA
Petitioner filed his money claim before the COA. A money claim is "a
demand for payment of a sum of money, reimbursement or compensation
arising from law or contract due from or owing to a government agency."8
Under Commonwealth Act No. 327,9 as amended by Presidential Decree No.
1445,10 money claims against the government shall be filed before the
COA.11
Section 2(1), Article IX(D) of the 1987 Constitution prescribes the powers of
the COA, as follows:
Sec. 2. (1) The Commission on Audit shall have the power, authority, and
duty to examine, audit, and settle all accounts pertaining to the revenue and
receipts of, and expenditures or uses of funds and property, owned or held in
trust by, or pertaining to, the Government, or any of its subdivisions,
agencies, or instrumentalities, including government-owned or controlled
corporations with original charters, and on a post-audit basis; (a)
constitutional bodies, commissions and offices that have been granted fiscal
autonomy under this Constitution; (b) autonomous state colleges and
universities; (c) other government-owned or controlled corporations and their
subsidiaries; and (d) such non-governmental entities receiving subsidy or
equity, directly or indirectly, from or through the Government, which are
required by law or the granting institution to submit such audit as a condition
of subsidy or equity. However, where the internal control system of the
audited agencies is inadequate, the Commission may adopt such measures,
including temporary or special pre-audit, as are necessary and appropriate to
correct the deficiencies. It shall keep the general accounts of the
Government and, for such period as may be provided by law, preserve the
vouchers and other supporting papers pertaining thereto.
The jurisdiction of the COA over money claims against the government does
not include the power to rule on the constitutionality or validity of laws. The
1987 Constitution vests the power of judicial review or the power to declare
unconstitutional a law, treaty, international or executive agreement,
presidential decree, order, instruction, ordinance, or regulation in this Court
and in all Regional Trial Courts.12 Petitioners money claim essentially
involved the constitutionality of Section 27 of PD 1638, as amended. Hence,
the COA did not commit grave abuse of discretion in dismissing petitioners
money claim.
Petitioner submits that the COA has the authority to order the restoration of
his pension even without ruling on the constitutionality of Section 27 of PD
1638, as amended. The COA actually ruled on the matter in its 13 January
2004 Resolution, thus:
Furthermore, assuming arguendo that this Commission assumed jurisdiction
over the instant case, claimants entitlement to the retirement benefits he was
previously receiving must necessarily be severed or stopped upon the loss of
his Filipino citizenship as prescribed in Section 27, P.D. No. 1638, as
amended by P.D. No. 1650.13
The COA effectively denied petitioners claim because of the loss of his
Filipino citizenship.
Application of PD 1638, as amended
Petitioner alleges that PD 1638, as amended, should apply prospectively.
The Office of the Solicitor General (OSG) agrees with petitioner. The OSG
argues that PD 1638, as amended, should apply only to those who joined the
military service after its effectivity, citing Sections 33 and 35, thus:
Section 33. Nothing in this Decree shall be construed in any manner to
reduce whatever retirement and separation pay or gratuity or other monetary
benefits which any person is heretofore receiving or is entitled to receive
under the provisions of existing law.
xxxx
Section. 35. Except those necessary to give effect to the provisions of this
Decree and to preserve the rights granted to retired or separated military
personnel, all laws, rules and regulations inconsistent with the provisions of
this Decree are hereby repealed or modified accordingly.
The OSG further argues that retirement laws are liberally construed in favor
of the retirees. Article 4 of the Civil Code provides: "Laws shall have no
retroactive effect, unless the contrary is provided." Section 36 of PD 1638, as
amended, provides that it shall take effect upon its approval. It was signed on
10 September 1979. PD 1638, as amended, does not provide for its
retroactive application. There is no question that PD 1638, as amended,
applies prospectively.
However, we do not agree with the interpretation of petitioner and the OSG
that PD 1638, as amended, should apply only to those who joined the military
after its effectivity. Since PD 1638, as amended, is about the new system of
retirement and separation from service of military personnel, it should apply
to those who were in the service at the time of its approval. In fact, Section 2
of PD 1638, as amended, provides that "th[e] Decree shall apply to all
military personnel in the service of the Armed Forces of the Philippines." PD
1638, as amended, was signed on 10 September 1979. Petitioner retired in
1982, long after the approval of PD 1638, as amended. Hence, the
provisions of PD 1638, as amended, apply to petitioner.
Petitioner Has No Vested Right to his
Retirement Benefits
Petitioner alleges that Section 27 of PD 1638, as amended, deprives him of
his property which the Constitution and statutes vest in him. Petitioner
alleges that his pension, being a property vested by the Constitution, cannot
be removed or taken from him just because he became a naturalized
American citizen. Petitioner further alleges that the termination of his monthly
pension is a penalty equivalent to deprivation of his life.
The allegations have no merit. PD 1638, as amended, does not impair any
vested right or interest of petitioner. Where the employee retires and meets
the eligibility requirements, he acquires a vested right to the benefits that is
protected by the due process clause.14 At the time of the approval of PD
1638 and at the time of its amendment, petitioner was still in active service.
Hence, petitioners retirement benefits were only future benefits and did not
constitute a vested right. Before a right to retirement benefits or pension
vests in an employee, he must have met the stated conditions of eligibility
with respect to the nature of employment, age, and length of service.15 It is
only upon retirement that military personnel acquire a vested right to
retirement benefits. Retirees enjoy a protected property interest whenever
they acquire a right to immediate payment under pre-existing law.16
Further, the retirement benefits of military personnel are purely gratuitous in
nature. They are not similar to pension plans where employee participation is
mandatory, hence, the employees have contractual or vested rights in the
pension which forms part of the compensation.17
Constitutionality of Section 27 of PD 1638
Section 27 of PD 1638, as amended, provides:
Section 27. Military personnel retired under Sections 4, 5, 10, 11 and 12 shall
be carried in the retired list of the Armed Forces of the Philippines. The name
of a retiree who loses his Filipino citizenship shall be removed from the
retired list and his retirement benefits terminated upon such loss.
The OSG agrees with petitioner that Section 27 of PD 1638, as amended, is
unconstitutional. The OSG argues that the obligation imposed on petitioner to
retain his Filipino citizenship as a condition for him to remain in the AFP
retired list and receive his retirement benefit is contrary to public policy and
welfare, oppressive, discriminatory, and violative of the due process clause
of the Constitution. The OSG argues that the retirement law is in the nature
of a contract between the government and its employees. The OSG further
argues that Section 27 of PD 1638, as amended, discriminates against AFP
retirees who have changed their nationality.
We do not agree.
The constitutional right to equal protection of the laws is not absolute but is
subject to reasonable classification.18 To be reasonable, the classification (a)
must be based on substantial distinctions which make real differences; (b)
must be germane to the purpose of the law; (c) must not be limited to existing
conditions only; and (d) must apply equally to each member of the class.19
There is compliance with all these conditions. There is a substantial
difference between retirees who are citizens of the Philippines and retirees
who lost their Filipino citizenship by naturalization in another country, such as
petitioner in the case before us. The constitutional right of the state to require
all citizens to render personal and military service20 necessarily includes not
only private citizens but also citizens who have retired from military service. A
retiree who had lost his Filipino citizenship already renounced his allegiance
to the state. Thus, he may no longer be compelled by the state to render
compulsory military service when the need arises. Petitioners loss of Filipino
citizenship constitutes a substantial distinction that distinguishes him from
other retirees who retain their Filipino citizenship. If the groupings are
characterized by substantial distinctions that make real differences, one class
may be treated and regulated differently from another. 21
Republic Act No. 707722 (RA 7077) affirmed the constitutional right of the
state to a Citizen Armed Forces. Section 11 of RA 7077 provides that citizen
soldiers or reservists include ex-servicemen and retired officers of the AFP.
Hence, even when a retiree is no longer in the active service, he is still a part
of the Citizen Armed Forces. Thus, we do not find the requirement imposed
by Section 27 of PD 1638, as amended, oppressive, discriminatory, or
contrary to public policy. The state has the right to impose a reasonable
condition that is necessary for national defense. To rule otherwise would be
detrimental to the interest of the state.
There was no denial of due process in this case. When petitioner lost his
Filipino citizenship, the AFP had no choice but to stop his monthly pension in
accordance with Section 27 of PD 1638, as amended. Petitioner had the
opportunity to contest the termination of his pension when he requested for is amended or repealed in the future, the AFP has to apply Section 27 of PD
reconsideration of the removal of his name from the list of retirees and the 1638, as amended.
termination of his pension. The Judge Advocate General denied the request
pursuant to Section 27 of PD 1638, as amended. WHEREFORE, we DISMISS the petition. We AFFIRM the 9 January 2003
Decision and 13 January 2004 Resolution of the Commission on Audit.
Petitioner argues that he can reacquire his Filipino citizenship under Republic
Act No. 922523 (RA 9225), in which case he will still be considered a natural- SO ORDERED.
born Filipino. However, petitioner alleges that if he reacquires his Filipino
citizenship under RA 9225, he will still not be entitled to his pension because
of its prior termination. This situation is speculative. In the first place,
petitioner has not shown that he has any intention of reacquiring, or has done
anything to reacquire, his Filipino citizenship. Secondly, in response to the
request for opinion of then AFP Chief of Staff, General Efren L. Abu, the
Department of Justice (DOJ) issued DOJ Opinion No. 12, series of 2005,
dated 19 January 2005, thus:

[T]he AFP uniformed personnel retirees, having re-acquired Philippine

citizenship pursuant to R.A. No. 9225 and its IRR, are entitled to pension and
gratuity benefits reckoned from the date they have taken their oath of
allegiance to the Republic of the Philippines. It goes without saying that these
retirees have no right to receive such pension benefits during the time that
they have ceased to be Filipinos pursuant to the aforequoted P.D. No. 1638,
as amended, and any payment made to them should be returned to the AFP.
x x x.24

Hence, petitioner has other recourse if he desires to continue receiving his

monthly pension. Just recently, in AASJS Member-Hector Gumangan
Calilung v. Simeon Datumanong,25 this Court upheld the constitutionality of
RA 9225. If petitioner reacquires his Filipino citizenship, he will even recover
his natural-born citizenship.26 In Tabasa v. Court of Appeals,27 this Court
reiterated that "[t]he repatriation of the former Filipino will allow him to
recover his natural-born citizenship x x x."

Petitioner will be entitled to receive his monthly pension should he reacquire

his Filipino citizenship since he will again be entitled to the benefits and
privileges of Filipino citizenship reckoned from the time of his reacquisition of
Filipino citizenship. There is no legal obstacle to the resumption of his
retirement benefits from the time he complies again with the condition of the
law, that is, he can receive his retirement benefits provided he is a Filipino
citizen.

We acknowledge the service rendered to the country by petitioner and those

similarly situated. However, petitioner failed to overcome the presumption of
constitutionality of Section 27 of PD 1638, as amended. Unless the provision
G.R. No. 76044 June 28, 1988 When petitioner retired on 17 January 1984, among the items disallowed by
the Resident Auditor was the amount of P6,574.00 from the labor contracts
ATTY. PRAXEDIO P. DINGCONG, petitioner, with Layson, by reducing the latter's daily rate from P40.00 per day to P18.00
vs. daily.
HON. TEOFISTO T. GUINGONA, JR., Chairman, B. C. FERNANDEZ, JR.,
and COMMISSIONER EUFEMIO C. DOMINGO Commissioner, Petitioner appealed to the Chairman of the Commission on Audit, who
COMMISSION ON AUDIT Quezon City, respondents. affirmed the disallowance as being "excessive and disadvantageous to the
government," but increased Layson's daily rate to P25.00 thereby reducing
the total amount disallowed to P4,276.00. Despite petitioner's request for
reconsideration, respondent Commission remained unmoved, hence, the
MELENCIO-HERRERA, J.: instant appeal.

An appeal on certiorari seeking to annul and set aside the decision of On 8 April 1987, we resolved to give due course to the petition and required
the parties to submit their respective memoranda, which they have done.
respondent Commission on Audit (COA) in its 7th Indorsement of 1
September 1986 disallowing petitioner's claim for reimbursement of
payments he had advanced for services rendered on "pakyao" basis in the Petitioner assails the disallowance as invalid for being a usurpation of a
renovation and improvement of the office of the Bureau of Treasury, Iloilo management function and an impairment of contract.
City.
We reject petitioner's submission.
Petitioner, Atty. Praxedio P. Dingcong, was the former Acting Regional
Director of Regional Office No. VI of the Bureau of Treasury in Iloilo City, until Not only is the Commission on Audit (COA) vested with the power and
his retirement on 17 January 1984. authority, but it is also charged with the duty, to examine, audit and settle all
accounts pertaining to ... the expenditures or uses of funds ... owned ... by, or
On three occasionsJune 1982, September 1982 and February 1983 pertaining to, the Government or any of its subdivisions, agencies, or
petitioner, after public bidding, contracted, admittedly on an "emergency instrumentalities (Article IX [D], Section 2 [1],1987 Constitution). That
labor basis," the services of one Rameses Layson, a private carpenter and authority extends to the accounts of all persons respecting funds or
electrician on "pakyao" basis for the renovation and improvement of the properties received or held by them in an accountable capacity (Section 26,
Bureau of Treasury Office, Iloilo City. Layson submitted the lowest bids so P. D. No. 1445). In the exercise of its jurisdiction, it determines whether or
that the contracts were awarded to him, as follows: not the fiscal responsibility that rests directly with the head of the government
agency has been properly and effectively discharged (Section 25[1], Ibid.),
and whether or not there has been loss or wastage of government resources.
Dates Contract Amount Working Days It is also empowered to review and evaluate contracts (Section 18 [4], Ibid.).
And, after an audit has been made, its auditors issue a certificate of
June, 1982 P 2,800.00 17 days settlement to each officer whose account has been audited and settled in
whole or in part, stating the balances found due thereon and certified, and
Sept., 1982 2,980.00 44 days the charges or differences arising from the settlement by reason of
disallowances, charges or suspensions (Section 82, Ibid.).
February 1983 2 522 00 35 days

Total P 8,302.00 Viewed in this light, the disallowance made by COA is neither illegal nor a
usurpation of a management function. The authority of the petitioner, as
agency head, to enter into a contract is not being curtailed. What COA
Subsequently, Layson was hired as a casual employee in the Bureau of maintains is that the "pakyao" contract has proved disadvantageous to the
Treasury Office in order to do away with the hiring of a private carpenter and government.
electrician.
Addressing this issue now, the payments for the "pakyao" labor contract
were disallowed on the ground that the cost of that contract was excessive
and, therefore, disadvantageous to the government in that the rate applied by
petitioner was P40.00/day when the prevailing rate at that time was only
P25.00/day for casuals.
We find ourselves in disagreement.
petitioner's part of government interests and a positive effort to avail of cost-
cutting options.
WHEREFORE, the Decision of the Commission on Audit is hereby SET
ASIDE, and it is hereby ordered to refund to petitioner the disallowed item of
P4,276.00, which amount was deducted from his terminal leave voucher
upon his retirement.

The labor contract entered into by petitioner was on the "pakyao" basis. On SO ORDERED.
the other hand, the transaction was audited on a daily minimum wage rate
basis. The result was that the emergency nature of the contract was
overlooked, a different cost of labor for casuals was imposed, the assistance
of two other carpenters who worked with Layson even on Saturdays was
disregarded, and Layson's additional skill as an electrician and plumber was
not adequately considered.

Indeed, the criteria for a daily wage rate contract can hardly be applied to
"pakyao" arrangements, the two being worlds apart. In "pakyao" a worker is
paid by results. It is akin to a contract for a piece of work where-by the
contractor binds himself to execute a piece of work for the employer, in
consideration of a certain price or consideration. The contractor may either
employ his labor or skill, or also furnish the material (Article 1713, Civil
Code). Not so in a contract on a daily wage basis, where what is paid for is
the labor alone. Under the "pakyao" system, payment is made in a lump sum;
the laborer makes a profit for himself, which is justified by the fact that any
loss would also be borne by him. On the other hand, no profit inures to the
daily wage worker and no materials are furnished by him. The "pakyao"
arrangement is not without its advantages. The tendency to dilly-dally on the
work, generally experienced in a daily wage contract, is hardly present in
labor on a "pakyao" basis. The latter can also be more flexible, with the need
for supervision reduced to the minimum. It is not necessarily frowned upon.
In fact; it is recognized in the Labor Code (Article 101), and even in the
Revised Manual of Instructions to Treasurers, which provides that "except in
construction or repairs requiring technical skill such as upon buildings,
bridges, water works structures, culverts, etc., when the total cost of the work
does not exceed P3,000.00, the same may be performed under the "pakyao"
contract ..." (Section 750). In this case, each contract with Layson did not
exceed P3,000.00.

Recourse to a "pakyao" labor contract, therefore, is not necessarily

disadvantageous. In this case, it was entered into only after public bidding
pursuant to existing regulations through canvass among three qualified
"bidders." Since Layson submitted the lowest price, each contract was
awarded to him. The Court also notes that Layson was subsequently hired as
a casual in the Bureau of Treasury Office in order to do away with the hiring
of a carpenter and electrician, thereby exhibiting an awareness on
G.R. No. 204869
TECHNICAL EDUCATION AND SKILLS DEVELOPMENT AUTHORITY
(TESDA), Petitioner,
vs.
THE COMMISSION ON AUDIT, CHAIRPERSON MA. GRACIA M. PULIDO
TAN, COMMISSIONER JUANITO G. ESPINO, JR., and COMMISSIONER
HEIDI L. MENDOZA, Respondents.
DECISION
CARPIO, J.:
The Case
This is a petition for certiorari1 with prayer for issuance of temporary
restraining order or writ of preliminary injunction to annul Decision No. 2012-
2102 of the Commission on Audit (COA). The COA disallowed payments of
Extraordinary and Miscellaneous Expenses (EME) by the Technical
Education and Skills Development Authority (TESDA) to its officials.
The Facts
Upon post audit, the TESDA audit team leader discovered that for the
calendar years 2004-2007, TESDA paid EME twice each year to its officials
from two sources: (1) the General Fund for locally-funded projects, and (2)
the Technical Education and Skills Development Project (TESDP) Fund for
the foreign-assisted projects. The payment of EME was authorized under the
General Provisions of the General Appropriations Acts of 2004, 2005,3 2006
and 2007 (2004-2007 GAAs), subject to certain conditions:
x x x Extraordinary and Miscellaneous Expenses. Appropriations authorized
herein may be used for extraordinary expenses of the following officials
and those of equivalent rank as may be authorized by the DBM, not
exceeding:
(a)P180,000 for each Department Secretary;
(b)P65,000 for each Department Undersecretary;
(c)P35,000 for each Department Assistant Secretary;
(d)P30,000 for each head of bureau or organization of equal rank to
a bureau and for each Department Regional Director;
(e)P18,000 for each Bureau Regional Director; and
(f)P13,000 for each Municipal Trial Court Judge, Municipal Circuit
Trial Court Judge, and Sharia Circuit Court Judge.
In addition, miscellaneous expenses not exceeding Fifty Thousand
Pesos (P50,000) for each of the offices under the above named officials
are authorized.4 (Emphasis supplied)
On 15 May 2008, the audit team issued Notice of Disallowance No. 08-002-
101 (04-06)5 disallowing the payment of EME amounting to P5,498,706.60
for being in excess of the amount allowed in the 2004-2007 GAAs. In
addition, the EME were disbursed to TESDA officials whose positions were
not of equivalent ranks as authorized by the Department of Budget and
Management (DBM), contrary to the provisions of the 2004-2007 GAAs.
Notice of Disallowance No. 08-002-101 (04-06) indicated the persons liable
for the excessive payment of EME: the approving officers, payees and the
accountants.6
On 4 July 2008, TESDA, through its then Director-General Augusto Boboy
Syjuco, Jr., filed an Appeal Memorandum7 arguing that the 2004-2007 GAAs
and the Government Accounting and Auditing Manual allowed the grant of
EME from both the General Fund and the TESDP Fund provided the legal
ceiling was not exceeded for each fund. According to TESDA, the General
Fund and the TESDP Fund are distinct from each other, and TESDA officials
who were designated as project officers concurrently with their regular
functions were entitled to separate EME from both funds.
The Ruling of the Commission on Audit
In a Decision dated 5 September 2008,8 the COA Cluster Director, Cluster
VII, National Government Sector, denied the appeal for lack of merit. The
COA Cluster Director ruled that:
On the first issue, the GAA provision on EME is very clear to the effect that
payment of EME may be taken from any authorized appropriation but shall
not exceed the ceiling stated therein. It had been consistently held that when
the language of the law is clear and unequivocal it should be given its
common and ordinary meaning. If the legislative intent is to grant officials
EME of unlimited amount, no limit or ceiling should have been included in the
GAA. On the other hand, the Audit Team Leader stated that the inclusion in
TESDA budget for EME in TESDP Fund, which was actually found only in
the GAA for FY 2005 could not serve as basis for the grant of EME, should
not be treated distinctly and separately from EME provision under the
General Provisions of the GAA as the officials who were paid the EME from
[TESDP Fund] are the same TESDA officials who were already paid EME out
[of the General Fund]. It should be emphasized that the designation of
TESDA officials as Project Managers in concurrent capacities to offices
under TESDP, forms part only of their additional functions without another
appointment. The EME is covered by the compensation attached to his
principal office and not for every project handled. x x x.
On the second issue whether officials who are not of equivalent rank as
authorized by the DBM, the Audit Team Leader informed that the officials
were designated for [positions] which are not included in the Personnel
Service Itemization (PSI) and the creation of said positions [was] not
supported with authority or approval from the DBM. Neither was there a DBM
document identifying the equivalent ranks of these positions as basis for
ascertaining the amount of EME to be paid.
On the third issue whether the Regional Directors who were not performing
as head of the Bureau or a regional office or organization unit of equal rank,
because of their reassignment to the Office of the Director[-]General, the
same were not entitled to receive EME since the Director[- ]General and its
office are already claiming the said amount. There could be no two officials
entitled to receive EME although they are listed in the GAA as entitled to
receive the same.9
On 4 December 2008, TESDA, through its Director-General, filed a petition
for review with COA.
In a Decision dated 15 November 2012,10 COA denied TESDAs petition for
lack of merit. The COA adopted the findings of both the TESDA audit team
and the COA Cluster Director that the grant of EME exceeded the allowable
limit in the 2004-2007 GAAs. The COA emphasized that the provision in the
2004-2007 GAAs that granted EME clearly provided a ceiling for its grant.
Accordingly, the COA ruled that the failure of the TESDA officials to adhere
to the 2004-2007 GAAs negated their claim of good faith. Thus, the COA
ordered them to refund the excess EME they received.
In a Resolution dated 12 March 2013,11 the Court En Banc resolved to
excuse the Office of the Solicitor General from representing the COA due to
conflict of interest considering that both COA and TESDA are government
agencies being represented by it.
The Issues
In this petition, TESDAseeks a reversal and raises the following issues for
resolution:
A. THE [COA] GRAVELY ERRED IN DISALLOWING THE
PAYMENTS MADE BY TESDA TO ITS OFFICIALS OF THEIR
[EME] FROM BOTH [GENERAL FUND] AND [TESDP FUND];
B.THE [COA] LIKEWISE GRAVELY ERRED IN HOLDING THE
OFFICERS OF TESDA INDIVIDUALLY LIABLE FOR THE TOTAL
DISALLOWANCE IN THE AMOUNT OF P5,498,706.60 EVEN IF
THEY MAY BE RIGHTFULLY CONSIDERED AS DE FACTO
OFFICERS IN GOOD FAITH WHO ARE ENTITLED TO EME FOR
ACTUAL SERVICES RENDERED;
C.THE [COA] LIKEWISE GRAVELY ERRED IN HOLDING THAT
CONSIDERING THE CEILING SET FORTH BY SECTIONS 23[, 25]
AND 26 OF THE GENERAL PROVISIONS OF THE [2004-2007
GAAS], THE CONCERNED TESDA OFFICIALSCLAIMS FOR EME
ARE UNAUTHORIZED AND EXCESSIVE;
D.FINALLY, THE [COA] GRAVELY ERRED IN HOLDING THAT
THE CONCERNED TESDA OFFICIALS CANNOT BE
CONSIDERED AS DE FACTO OFFICERS IN GOOD FAITH AND IN
DISREGARDING THE RELEVANT RULING OF THE SUPREME
COURT IN THE CASE OF CA[N]TILLO VS. ARRIETA.12
The Ruling of the Court
The petition is partly meritorious.
The Constitution vests COA, as guardian of public funds, with enough
latitude to determine, prevent and disallow irregular, unnecessary, excessive,
extravagant or unconscionable expenditures of government funds.13 The
COA is generally accorded complete discretion in the exercise of its
constitutional duty and the Court generally sustains its decisions in
recognition of its expertise in the laws it is entrusted to enforce.14
Only when COAacts without or in excess of jurisdiction, or with grave abuse
of discretion amounting to lack or excess of jurisdiction, may the Court grant
a petition assailing COAs actions. There is grave abuse of discretion when
there is an evasion of a positive duty or a virtual refusal to perform a duty
enjoined by law or to act in contemplation of law as when the judgment
rendered is not based on law and evidence but on caprice, whim and
despotism.15
We do not find any grave abuse of discretion when COA disallowed the
disbursement of EME to TESDA officials for being excessive and
unauthorized by law, specifically the 2004-2007 GAAs, to wit:
x x x Extraordinary and Miscellaneous Expenses. Appropriations authorized
herein may be used for extraordinary expenses of the following officials and
those of equivalent rank as may be authorized by the DBM, not exceeding:
(a)P180,000 for each Department Secretary;
(b)P65,000 for each Department Undersecretary;
(c)P35,000 for each Department Assistant Secretary;
(d)P30,000 for each head of bureau or organization of equal rank to
a bureau and for each Department Regional Director;
(e)P18,000 for each Bureau Regional Director; and
(f)P13,000 for each Municipal Trial Court Judge, Municipal Circuit
Trial Court Judge, and Sharia Circuit Court Judge.
In addition, miscellaneous expenses not exceeding Fifty Thousand Pesos
(P50,000) for each of the offices under the above named officials are
authorized.16 (Boldfacing and italicization supplied)
The GAA provisions are clear that the EME shall not exceed the
amounts fixed in the GAA. The GAA provisions are also clear that only
the officials named in the GAA, the officers of equivalent rank as may
be authorized by the DBM, and the offices under them are entitled to
claim EME not exceeding the amount provided in the GAA.
The COA faithfully implemented the GAA provisions. COA Circular No. 2012-
00117 states that the amount fixed under the GAA for the National
Government offices and officials shall be the ceiling in the disbursement of
EME. COA Circular No. 89-300,18 prescribing the guidelines in the
disbursement of EME, likewise states that the amount fixed by the GAA shall
be the basis for the control in the disbursement of these funds.
The COA merely complied with its mandate when it disallowed the EME that
were reimbursed to officers who were not entitled to the EME, or who
received EME in excess of the allowable amount. When the law is clear,
plain and free from ambiguity, there should be no room for interpretation but
only its application.
However, TESDA insists on its interpretation justifying its payment of EME
out of the TESDP Fund. It argues that the 2004-2007 GAAs did not prohibit
its officials from receiving additional EME chargeable against an authorized
funding, the TESDP Fund in this case, for another office to which they have
been designated.
We do not find merit in TESDAs argument.
The TESDA is an instrumentality of the government established under
Republic Act No. 7796 or the TESDA Act of 1994.1wphi1 Under Section 33
of the TESDAAct, the TESDAbudget for the implementation of the Act is
included in the annual GAA; hence, the TESDPFund, being sourced from the
Treasury, are funds belonging to the government, or any of its departments,
in the hands of public officials.19 The Constitution provides, "No money shall
be paid out of the Treasury except in pursuance of an appropriation made by
law."20 The State Audit Code, which prescribes the guidelines in disbursing
public funds, reiterates this important Constitutional provision that there
should be an appropriation law or other statutes specifically authorizing
payment out of any public funds.21In this case, TESDA failed to point out the
law specifically authorizing it to grant additional reimbursement for EME from
the TESDP Fund, contrary to the explicit requirement in the Constitution and
the law. In Yap v. Commission on Audit,22 we upheld COAs disallowance of
medical expenses and other benefits such as car maintenance, gasoline
allowance and drivers subsidy due to petitioners failure to point out the law
specifically authorizing the same. There is nothing in the 2004-2007 GAAs
which allows TESDA to grant its officials another set of EME from another
source of fund like the TESDP Fund. COA aptly pointed out that not even
TESDAs inclusion of EME from both the General Fund and the TESDP Fund
in the 2005 GAA justified its payment of excessive EME from 2004 up to
2007.23 The 2005 GAA provided for a ceiling on EME that TESDA still had to
comply despite the grant of EME in the 2005 GAA for foreign-assisted
projects.
The position of project officer is not among those listed or authorized to be
entitled to EME, namely, the officials named in the GAA, the officers of
equivalent rank as may be authorized by the DBM, and the offices under
them. The underlying principle behind the EME is to enable those occupying
key positions in the government to meet various financial demands.24 As
pointed out by COA, the position of project officer is not even included in the
Personnel Service Itemization or created with authority from the DBM.25
Thus, the TESDA officials were, in fact, merely designated with additional
duties, which designation did not entitle them to additional EME. In
Dimaandal v. COA,26 we held that designation is a mere imposition of
additional duties, which does not entail payment of additional benefits. Since
the TESDA officials were merely designated with additional duties, the ruling
in Cantillo v. Arrieta27 on de facto officers need not be discussed.
Having settled that COA properly disallowed the payment of excessive EME
by TESDA, we proceed to determine whether the TESDA officials should
refund the excess EME granted to them.
In Blaquera v. Alcala,28 the Court no longer required the officials and
employees of different government departments and agencies to refund the
productivity incentive bonus they received because there was no indicia of
bad faith and the disbursement was made in the honest belief that the
recipients deserved the amounts. We, however, qualified this Blaquera ruling
in Casal v. COA,29 where we held the approving officials liable for the refund
of the incentive award due to their patent disregard of the issuances of the
President and the directives of COA. In Casal, we ruled that the officials
failure to observe the issuances amounted to gross negligence, which is
inconsistent with the presumption of good faith. We applied the Casal ruling
in Velasco v. COA,30 to wit:
x x x the blatant failure of the petitioners-approving officers to abide
with the provisions of AO 103 and AO 161 overcame the presumption of
good faith. The deliberate disregard of these issuances is equivalent to
gross negligence amounting to bad faith. Therefore, the petitioners-approving
officers are accountable for the refund of the subject incentives which they
received.
However, with regard to the employees who had no participation in the
approval of the subject incentives, they were neither in bad faith nor were
they grossly negligent for having received the benefits under the
circumstances. The approving officers allowance of the said awards certainly
tended to give it a color of legality from the perspective of these employees.
Being in good faith, they are therefore under no obligation to refund the
subject benefits which they received.31 (Emphasis supplied)
Applying by analogy the Blaquera, Casal and Velasco rulings, as well as
Section 16 of the 2009 Rules and Regulations on Settlement of Accounts,32
we hold the approving officers of TESDA liable for the excess EME received
by them.
The TESDA Act provides that the TESDA Secretariat, headed by the
Director-General, shall propose the specific allocation of resources for the
programs and projects it shall undertake pursuant to approved national
technical education and skills development plan.33 As chief executive officer
of the TESDA Secretariat, the Director-General shall likewise exercise
general supervision and control over its technical and administrative
personnel.34
In the petition filed before the Court, TESDA alleged that the various
memoranda issued by the Director-General authorized the TESDA officials
designated as TESDP project officers to claim EME under the TESDP
Fund.35 TESDA did not cite a specific provision of law authorizing such
EME, but claimed that its grant had been an "institutional practice,"36
showing the lack of statutory authority to pay such EME. Despite this lack of
authority for granting additional EME, the then Director-General still permitted
EME in excess of the allowable amount and extended EME to officials not
entitled to it, patently contrary to the 2004-2007 GAAs. The then Director-
General himself received EME from the TESDP Fund amounting to
P809,691.11,37 contrary to his claim that only executive directors, regional
directors or officials holding equivalent positions assigned by him as project
officers were entitled to EME from the TESDP Fund.38 The then Director-
General likewise insisted on his own interpretation of the 2004-2007 GAAs
disregarding the basic principle of statutory construction that when the law is
clear, there should be no room for interpretation but only its application. If
there was any ambiguity in the law, the then Director-General should have
sought clarification from DBM and should not have simply relied on his own
interpretation, which was self-serving.
Accordingly, the Director-General's blatant violation of the clear
provisions of the Constitution, the 2004-2007 GAAs and the COA
circulars is equivalent to gross negligence amounting to bad faith. He is
required to refund the EME he received from the TESDP Fund for himself. As
for the TESDA officials who had no participation in the approval of the
excessive EME, they acted in good faith since they had no hand in the
approval of the unauthorized EME. They also honestly believed that the
additional EME were reimbursement for their designation as project officers
by the Director-General. Being in good faith, they need not refund the excess
EME they received.
WHEREFORE, we AFFIRM the Commission on Audit Decision No. 2012-210
dated 15 November 2012 with MODIFICATION. Only the Director-
Generals39 of the Technical Education and Skills Development Authority
who approved the excess or unauthorized extraordinary and miscellaneous
expenses are ordered to refund the excess extraordinary and miscellaneous
expenses which they received for themselves.
SO ORDERED.
G.R. No. 195390 December 10, 2014
GOV. LUIS RAYMUND F. VILLAFUERTE, JR., and the PROVINCE OF
CAMARINES SUR, Petitioners,
vs.
HON. JESSE M. ROBREDO, in his capacity as Secretary of the
Department of the Interior and Local Government, Respondent.
DECISION
REYES, J.:
This is a petition for certiorari and prohibition1 under Rule 65 of the 1997
Revised Rules of Court filed by former Governor Luis Raymund F. Villafuerte,
Jr. (Villafuerte) and the Province of Camarines Sur (petitioners), seeking to
annul and set aside the following issuances of the late Honorable Jesse M.
Robredo (respondent), in his capacity as then Secretary of the Department of
the Interior and Local Government (DILG), to wit:
(a) Memorandum Circular (MC) No. 2010-83dated August 31, 2010,
pertaining to the full disclosure of local budget and finances, and bids
and public offerings;2
(b) MC No. 2010-138 dated December 2, 2010, pertaining to the use
of the 20% component of the annual internal revenue allotment
shares;3 and
(c) MC No. 2011-08 dated January 13, 2011, pertaining to the strict
adherence to Section 90 of Republic Act (R.A.) No. 10147 or the
General Appropriations Act of 2011.4
The petitioners seek the nullification of the foregoing issuances on the
ground of unconstitutionality and for having been issued with grave abuse of
discretion amounting to lack orexcess of jurisdiction.
The Facts
In 1995, the Commission on Audit (COA) conducted an examination and
audit on the manner the local government units (LGUs) utilized their Internal
Revenue Allotment (IRA) for the calendar years 1993-1994. The examination
yielded an official report,showing that a substantial portion of the 20%
development fund of some LGUs was not actually utilized for development
projects but was diverted to expenses properly chargeable against the
Maintenance and Other Operating Expenses (MOOE), in stark violation of
Section 287 of R.A. No. 7160, otherwise known as the Local Government
Code of 1991 (LGC). Thus, on December 14, 1995, the DILG issued MC No.
95-216,5 enumerating the policies and guidelines on the utilization of the
development fund component of the IRA. It likewise carried a reminder to
LGUs of the strict mandate to ensure that public funds, like the 20%
development fund, "shall bespent judiciously and only for the very purpose or
purposes for which such funds are intended."6
On September 20, 2005, then DILG Secretary Angelo T. Reyes and
Department of Budget and Management Secretary Romulo L. Neri issued
Joint MC No. 1, series of 2005,7 pertaining to the guidelines on the
appropriation and utilization of the 20% of the IRA for development projects,
which aims to enhance accountability of the LGUs in undertaking
development projects. The said memorandum circular underscored that the
20% of the IRA intended for development projects should be utilized for
social development, economic development and environmental
management.8
On August 31, 2010, the respondent, in his capacity as DILG Secretary,
issued the assailed MC No. 2010-83,9 entitled "Full Disclosure of Local
Budget and Finances, and Bids and Public Offerings," which aims to promote
good governance through enhanced transparency and accountability of
LGUs. The pertinent portion of the issuance reads:
Legal and Administrative Authority
Section 352 of the Local Government Code of 1991 requires the posting
within 30 days from the end of eachfiscal year in at least three (3) publicly
accessible and conspicuous places in the local government unit a summary
of all revenues collected and funds received including the appropriations and
disbursements of such funds during the preceding fiscal year.
On the other hand, Republic Act No. 9184, known as the Government
Procurement Reform Act, calls for the posting of the Invitation to Bid, Notice
of Award, Notice to Proceed and Approved Contract in the procuring entitys
premises, in newspapers of general circulation, the Philippine Government
Electronic Procurement System (PhilGEPS) and the website of the procuring
entity. The declared policy of the State to promote good local governance
also calls for the posting of budgets, expenditures, contracts and loans, and
procurement plans of local government units in conspicuous places within
public buildings in the locality, inthe web, and in print media of community or
general circulation.
Furthermore, the President, in his first State of the Nation Address, directed
all government agencies and entities to bring to an end luxurious spending
and misappropriation ofpublic funds and to expunge mendacious and
erroneous projects, and adhere to the zero-based approach budgetary
principle.
Responsibility of the Local Chief Executive
All Provincial Governors, City Mayors and Municipal Mayors, are directed to
faithfully comply with the above cited [sic] provisions of laws, and existing
national policy, by posting in conspicuous places within public buildings in the
locality, or inprint media of community or general circulation, and in their
websites, the following:
1. CY 2010 Annual Budget, information detail to the level of
particulars of personal services, maintenance and other operating
expenses and capital outlay per individual offices (Source Document
- Local Budget Preparation Form No. 3, titled, Program Appropriation
and Obligation by Object of Expenditure, limited to PS, MOOE and
CO. For sample form, please visit www.naga.gov.ph);
2. Quarterly Statement of Cash Flows, information detail to the level
of particulars of cash flows from operating activities (e.g. cash
inflows, total cash inflows, total cash outflows), cash flows from
investing activities (e.g. cash outflows), net increase in cash and
cash at the beginning of the period (Source Document - Statement of
Cash Flows Form);
3. CY 2009 Statement of Receipts and Expenditures, information
detail to the level of particulars of beginning cash balance, receipts
or income on local sources (e.g., tax revenue, non-tax revenue),
external sources, and receipts from loans and borrowings, surplus of
prior years, expenditures on general services, economic services,
social services and debt services, and total expenditures (Source
Document - Local Budget Preparation Form No. 2, titled, Statement
of Receipts and Expenditures);
4. CY 2010 Trust Fund (PDAF) Utilization, information detail to the
level of particulars of object expenditures (Source Document - Local
Budget Preparation Form No. 3, titled, Program Appropriation and
Obligation by Object of Expenditure, limited to PDAF Utilization);
5. CY 2010 Special Education Fund Utilization, information detail to
the level of particulars of object expenditures (Source Document -
Local Budget Preparation Form No. 3, titled, Program Appropriation
and Obligation by Object of Expenditure, limited to Special Education
Fund);
6. CY 2010 20% Component of the IRA Utilization, information detail
to the level of particulars of objects of expenditure on social
development, economic development and environmental
management (Source Document - Local Budget Preparation Form
No. 3, titled, Program Appropriation and Obligation by Object of
Expenditure, limited to 20% Component of the Internal Revenue
Allotment);
7. CY 2010 Gender and Development Fund Utilization, information
detail to the level of particulars of object expenditures (Source
Document - Local Budget Preparation Form No. 3, titled, Program
Appropriation and Obligation by Object of Expenditure, limited to
Gender and Development Fund);
8. CY 2010 Statement of Debt Service, information detail to the level
of name of creditor, purpose of loan, date contracted, term, principal
amount, previous payment made on the principal and interest,
amount due for the budget year and balance of the principal (Source
Document - Local Budget Preparation Form No. 6, titled, Statement
of Debt Service);
9. CY 2010 Annual Procurement Plan or Procurement List,
information detail to the level ofname of project, individual item or
article and specification or description of goods and services,
procurement method, procuring office or fund source, unit price or
estimated cost or approved budget for the contract and procurement
schedule (Source Document - LGU Form No. 02, Makati City. For
sample form, please visit www.makati.gov.ph.)[;]
10. Items to Bid, information detail to the level of individual Invitation
to Bid, containing information as prescribed in Section 21.1 of
Republic Act No. 9184, or The Government Procurement Reform
Act, to be updated quarterly (Source Document - Invitation to Apply
for Eligibility and to Bid, as prescribed in Section 21.1 of R.A. No.
9184. For sample form, please visit www.naga.gov.ph);
11. Bid Results on Civil Works, and Goods and Services, information
detail to the level of project reference number, name and location of
project, name (company and proprietor) and address of winning
bidder, bid amount, approved budget for the contract, bidding date,
and contract duration, to be updated quarterly (Source Document
Infrastructure Projects/Goods and Services Bid-Out (2010), Naga
City. For sample form, please visit www.naga.gov.ph); and
 12. Abstract of Bids as Calculated, information detail to the level of
project name, location, implementing office, approved budget for the
contract, quantity and items subject for bidding, and bids of
competing bidders, to be updated quarterly (Source Document -
Standard Form No. SF-GOOD-40, Revised May 24, 2004, Naga
City. For sample form, please visit www.naga.gov.ph).
The foregoing circular also statesthat non-compliance will be meted
sanctions in accordance with pertinent laws, rules and regulations.10
On December 2, 2010, the respondent issued MC No. 2010-138,11
reiterating that 20% component of the IRA shall be utilized for desirable
social, economic and environmental outcomes essential to the attainment of
the constitutional objective of a quality oflife for all. It also listed the following
enumeration of expenses for which the fund must not be utilized, viz:
1. Administrative expenses such ascash gifts, bonuses, food
allowance, medical assistance, uniforms, supplies, meetings,
communication, water and light, petroleum products, and the like; 2.
Salaries, wages or overtime pay;
3. Travelling expenses, whether domestic or foreign;
4. Registration or participation feesin training, seminars, conferences
or conventions;
5. Construction, repairor refinishing of administrative offices;
6. Purchase of administrative office furniture, fixtures, equipment or
appliances; and
7. Purchase, maintenance or repair of motor vehicles or motorcycles,
except ambulances.12 On January 13, 2011, the respondent issued
MC No. 2011-08,13 directing for the strict adherence toSection 90 of
R.A. No. 10147 or the General Appropriations Act of 2011. The
pertinent portion of the issuance reads as follows:
Legal and Administrative Authority
Section 90 of Republic Act No. 10147 (General Appropriations Act) FY
2011 re "Use and Disbursement of Internal Revenue Allotment of LGUs",
[sic] stipulates: The amount appropriated for the LGUs share in the Internal
Revenue Allotment shall be used in accordance with Sections 17 (g) and 287
of R.A. No 7160. The annual budgets of LGUs shall be prepared in
accordance with the forms, procedures, and schedules prescribed by the
Department of Budget and Management and those jointly issued with the
Commission on Audit. Strict compliance with Sections 288 and 354 of R.A.
No. 7160 and DILG Memorandum Circular No. 2010-83, entitled "Full
Disclosure of Local Budget and Finances, and Bids and Public offering" is
hereby mandated; PROVIDED, That in addition to the publication or posting
requirement under Section 352 of R.A. No. 7160 in three (3) publicly
accessible and conspicuous places in the local government unit, the LGUs
shall also post the detailed information on the use and disbursement, and
status of programs and projects in the LGUS websites. Failure to comply with
these requirements shall subject the responsible officials to disciplinary
actions in accordance with existing laws. x x x14
xxxx
Sanctions
Non-compliance with the foregoing shall be dealt with in accordance with
pertinent laws, rules and regulations. In particular, attention is invited to the
provision of the Local Government Code of 1991, quoted as follows:
Section 60. Grounds for Disciplinary Actions - An elective local official may
be disciplined, suspended, or removed from office on: (c) Dishonesty,
oppression, misconduct in office, gross negligence, or dereliction of duty. x x
x15 (Emphasis and underscoring in the original)
On February 21, 2011, Villafuerte, then Governor of Camarines Sur, joined
by the Provincial Government of Camarines Sur, filed the instant petition for
certiorari, seeking to nullify the assailed issuances of the respondent for
being unconstitutional and having been issued with grave abuse of
discretion.
On June 2, 2011, the respondent filed his Comment on the petition.16 Then,
on June 22, 2011, the petitioners filed their Reply (With Urgent Prayer for the
Issuance of a Writ of Preliminary Injunction and/or Temporary Restraining
Order).17 In the Resolution18 dated October 11, 2011, the Court gave due
course to the petition and directed the parties to file their respective
memorandum. In compliance therewith, the respondent and the petitioners
filed their Memorandum on January 19, 201219 and on February 8, 201220
respectively.
The petitioners raised the following issues:
Issues
 I The respondent claims that there isyet any actual case or controversy that
THE HON. SECRETARY OF THE INTERIOR AND LOCAL GOVERNMENT
COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK
OR EXCESS OF JURISDICTION WHEN HEISSUED THE ASSAILED
MEMORANDUM CIRCULARS IN VIOLATION OF THE PRINCIPLES OF
LOCAL AUTONOMY AND FISCAL AUTONOMY ENSHRINED IN THE 1987
CONSTITUTION AND THE LOCAL GOVERNMENT CODE OF 1991[.]
II
THE HON. SECRETARY OF THE INTERIOR AND LOCAL GOVERNMENT
COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK
OR EXCESS OF JURISDICTION WHEN HEINVALIDLY ASSUMED
LEGISLATIVE POWERS IN PROMULGATING THE ASSAILED
MEMORANDUM CIRCULARS WHICH WENT BEYOND THE CLEAR AND
MANIFEST INTENT OF THE 1987 CONSTITUTION AND THE LOCAL
GOVERNMENT CODE OF 1991[.]21
Ruling of the Court
The present petition revolves around the main issue: Whether or not the
assailed memorandum circulars violate the principles of local and fiscal
autonomy enshrined in the Constitution and the LGC.
The present petition is ripe for judicial review.
At the outset, the respondent is questioning the propriety of the exercise of
the Courts power of judicial review over the instant case. He argues that the
petition is premature since there is yet any actual controversy that is ripe for
judicial determination. He points out the lack of allegation in the petition that
the assailed issuances had been fully implemented and that the petitioners
had already exhausted administrative remedies under Section 25 of the
Revised Administrative Code before filing the same in court.22
It is well-settled that the Courts exercise of the power of judicial review
requires the concurrence of the following elements: (1) there must be an
actual case or controversy calling for the exercise of judicial power; (2) the
person challenging the act must have the standing to question the validity of
the subject act or issuance; otherwise stated, he must have a personal and
substantial interest in the case such that he has sustained, or will sustain,
direct injury as a result of its enforcement; (3) the question of constitutionality
must be raised at the earliest opportunity; and (4) the issue of
constitutionality must be the very lis motaof the case.23
calls for the exercise of judicial review. He contends that the mere
expectation of an administrative sanction does not give rise to a justiciable
controversy especially, in this case, that the petitioners have yet to exhaust
administrative remedies available.24
The Court disagrees.
In La Bugal-Blaan Tribal Association, Inc. v. Ramos,25 the Court
characterized an actual case or controversy, viz:
An actual case or controversy means an existing case or controversy that is
appropriate or ripe for determination, not conjectural or anticipatory, lest the
decision of the court would amount to an advisory opinion. The power does
not extend to hypothetical questions since any attempt at abstraction could
only lead to dialectics and barren legal questions and to sterile conclusions
unrelated to actualities.26 (Citations omitted)
The existence of an actual controversy in the instant case cannot be
overemphasized. At the time of filing of the instant petition, the respondent
had already implemented the assailed memorandum circulars. In fact, on
May 26, 2011, Villafuerte received Audit Observation Memorandum (AOM)
No. 2011-009 dated May 10, 201127 from the Office of the Provincial Auditor
of Camarines Sur, requiring him to comment on the observation of the audit
team, which states:
The Province failed to post the transactions and documents required under
Department of Interior and Local Government (DILG) Memorandum Circular
No. 2010-83, thereby violating the mandate of full disclosure of Local Budget
and Finances, and Bids and Public Offering.
xxxx
The local officials concerned are reminded of the sanctions mentioned in the
circular which is quoted hereunder, thus:
"Non compliance with the foregoing shall be dealt with in accordance with
pertinent laws, rules and regulations. In particular, attention is invited to the
provision of Local Government Code of 1991, quoted as follows:
Section 60. Grounds for Disciplinary Actions An elective local official may
be disciplined, suspended or removed from office on: (c) Dishonesty,
oppression, misconduct in office, gross negligence or dereliction of duty."28
The issuance of AOM No. 2011-009 to Villafuerte is a clear indication that the
assailed issuances of the respondent are already in the full course of
implementation. The audit memorandum specifically mentioned of
Villafuertes alleged non-compliance with MCNo. 2010-83 regarding the
posting requirements stated in the circular and reiterated the sanctions that
may be imposed for the omission. The fact that Villafuerte is being required
to comment on the contents of AOM No. 2011-009 signifies that the process
of investigation for his alleged violation has already begun. Ultimately, the
investigation is expected to end in a resolution on whether a violation has
indeed been committed, together with the appropriate sanctions that come
with it. Clearly, Villafuertes apprehension is real and well-founded as he
stands to be sanctioned for non-compliance with the issuances.
There is likewise no merit in the respondents claim that the petitioners
failure to exhaust administrative remedies warrants the dismissal of the
petition. It bears emphasizing that the assailed issuances were issued
pursuant to the rule-making or quasi-legislative power of the DILG. This
pertains to "the power to make rules and regulations which results in
delegated legislation that is within the confines of the granting statute."29 Not
to be confused with the quasi-legislative or rule-making power of an
administrative agency is its quasi-judicial or administrative adjudicatory
power. This is the power to hear and determine questions of fact to which the
legislative policy is to apply and to decide in accordance with the standards
laid down by the law itself in enforcing and administering the same law.30 In
challenging the validity of anadministrative issuance carried out pursuant to
the agencys rule-making power, the doctrine of exhaustion of administrative
remedies does not stand as a bar in promptly resorting to the filing of a case
in court. This was made clear by the Court in Smart Communications, Inc.
(SMART) v. National Telecommunications Commission (NTC),31 where it
was ruled, thus:
In questioning the validity or constitutionality of a rule or regulation issued by
an administrative agency, a party need not exhaust administrative remedies
before going to court. This principle applies only where the act of the
administrative agency concerned was performed pursuant to its quasi-judicial
function, and not when the assailed act pertained to its rule-making orquasi-
legislative power. x x x.32
Considering the foregoing clarification, there is thus no bar for the Court to
resolve the substantive issues raised in the petition.
The assailed memorandum
circulars do not transgress the local
and fiscal autonomy granted to
LGUs.
The petitioners argue that the assailed issuances of the respondent interfere
with the local and fiscal autonomy of LGUs embodied in the Constitution and
the LGC. In particular, they claim that MC No. 2010-138 transgressed these
constitutionally-protected liberties when it restricted the meaning of
"development" and enumerated activities which the local government must
finance from the 20% development fund component of the IRA and provided
sanctions for local authorities who shall use the said component of the fund
for the excluded purposes stated therein.33 They argue that the respondent
cannot substitute his own discretion with that of the local legislative council in
enacting its annual budget and specifying the development projects that the
20% component of its IRA should fund.34
The argument fails to persuade.
The Constitution has expressly adopted the policy of ensuring the autonomy
of LGUs.35 To highlight its significance, the entire Article X of the
Constitution was devoted to laying down the bedrock upon which this policy
is anchored.
It is also pursuant to the mandate of the Constitution of enhancing local
autonomy that the LGC was enacted. Section 2 thereof was a reiteration of
the state policy. It reads, thus:
Sec. 2. Declaration of Policy. (a) It is hereby declared the policy of the
State that the territorial and political subdivisions of the State shall enjoy
genuine and meaningful local autonomy to enable them to attain their fullest
development as self-reliant communities and make them more effective
partners in the attainment ofnational goals. Toward this end, the State shall
provide for a more responsive and accountable local government structure
instituted through a system of decentralization whereby local government
units shall be given more powers, authority, responsibilities, and resources.
The process of decentralization shall proceed from the national government
to the local government units.
Verily, local autonomy means a more responsive and accountable local
government structure instituted through a system of decentralization.36 In
Limbona v. Mangelin,37 the Court elaborated on the concept of
decentralization, thus:
[A]utonomy is either decentralization of administration ordecentralization of
power. There is decentralization of administration when the central
government delegates administrative powers to political subdivisions in order
to broaden the base of government power and in the process to make local
governments "more responsive and accountable," and "ensure their fullest
development as self-reliant communities and make them more effective
partners in the pursuit of national development and social progress." At the
same time, it relieves the central government of the burden of managing local
affairs and enables it to concentrate on national concerns. x x x.
Decentralization of power, on the other hand, involves an abdication of
political power in the favor of local governments [sic] units declared to be
autonomous. In thatcase, the autonomous government is free to chart its
own destiny and shape its future with minimum intervention from central
authorities. x x x.38 (Citations omitted)
To safeguard the state policy on local autonomy, the Constitution confines
the power of the President over LGUs to mere supervision.39 "The President
exercises general supervision over them, but only to ensure that local
affairs are administered according to law. He has no control over their acts in
the sense that he can substitute their judgments with his own."40 Thus,
Section 4, Article X of the Constitution, states:
Section 4. The President of the Philippines shall exercise general supervision
over local governments. Provinces with respect to component cities and
municipalities, and cities and municipalities with respect to component
barangays, shall ensure that the acts of their component units are within the
scope of their prescribed powers and functions.
In Province of Negros Occidental v. Commissioners, Commission on
Audit,41 the Court distinguished general supervision from executive control
in the following manner:
The Presidents power of general supervision means the power of a superior
officer to see to it that subordinates perform their functions according to law.
This is distinguished from the Presidents power of control which is the power
to alter or modify or set aside what a subordinate officer had done in the
performance of his duties and to substitute the judgment of the President
over that of the subordinate officer. The power of control gives the President
the power to revise or reverse the acts or decisions of a subordinate officer
involving the exercise of discretion.42 (Citations omitted)
It is the petitioners contention that the respondent went beyond the confines
of his supervisory powers, asalter ego of the President, when he issued MC
No. 2010-138. They arguethat the mandatory nature of the circular, with the
threat of imposition of sanctions for non-compliance, evinces a clear desire to
exercise control over LGUs.43
The Court, however, perceives otherwise.
A reading of MC No. 2010-138 shows that it is a mere reiteration of an
existing provision in the LGC. It was plainly intended to remind LGUs to
faithfully observe the directive stated in Section 287 of the LGC to utilize the
20% portion of the IRA for development projects. It was, at best, an advisory
to LGUs to examine themselves if they have been complying with the law. It
must be recalled that the assailed circular was issued in response to the
report of the COA that a substantial portion of the 20% development fund of
some LGUs was not actually utilized for development projects but was
diverted to expenses more properly categorized as MOOE, in violation of
Section 287 of the LGC. This intention was highlighted in the very first
paragraph of MC No. 2010-138, which reads:
Section 287 of the Local Government Code mandates every local
government to appropriate in its annual budget no less than 20% of its
annual revenue allotment for development projects. In common
understanding, development means the realization of desirable social,
economic and environmental outcomes essential in the attainment of the
constitutional objective of a desired quality of life for all.44 (Underscoring in
the original)
That the term developmentwas characterized asthe "realization of desirable
social, economic and environmental outcome" does not operate as a
restriction of the term so as to exclude some other activities that may bring
about the same result. The definition was a plain characterization of the
concept of development as it is commonly understood. The statement of a
general definition was only necessary to illustrate among LGUs the nature of
expenses that are properly chargeable against the development fund
component of the IRA. It is expected to guide them and aid them in rethinking
their ways so that they may be able to rectify lapses in judgment, should
there be any, or it may simply stand as a reaffirmation of an already proper
administration of expenses.
The same clarification may be said of the enumeration of expenses in MC
No. 2010-138. To begin with, it is erroneous to call them exclusions because
such a term signifies compulsory disallowance of a particular item or activity.
This is not the contemplation of the enumeration. Again, it is helpful to
retrace the very reason for the issuance of the assailed circular for a better
understanding. The petitioners should be reminded that the issuance of MC
No. 2010-138 was brought about by the report of the COA that the
development fund was not being utilized accordingly. To curb the alleged
misuse of the development fund, the respondent deemed it proper to remind
LGUs of the nature and purpose of the provision for the IRA through MC No.
2010-138. To illustrate his point, heincluded the contested enumeration of
the items for which the development fund must generallynot be used. The
enumerated items comprised the expenses which the COA perceived to
have been improperly earmarked or charged against the development fund
based on the audit it conducted.
Contrary to the petitioners posturing, however, the enumeration was not
meant to restrict the discretion of the LGUs in the utilization of their funds. It
was meant to enlighten LGUs as to the nature of the development fund by
delineating it from other types of expenses. It was incorporated in the
assailed circular in order to guide them in the proper disposition of the IRA
and avert further misuse of the fund by citing current practices which seemed
to be incompatible with the purpose of the fund. Even then, LGUs remain at
liberty to map out their respective development plans solely on the basis of
their own judgment and utilize their IRAs accordingly, with the only restriction
that 20% thereof be expended for development projects. They may even
spend their IRAs for some of the enumerated items should they partake of
indirect costs of undertaking development projects. In such case, however,
the concerned LGU must ascertain that applicable rules and regulations on
budgetary allocation have been observed lest it be inviting an administrative
probe.
The petitioners likewise misread the issuance by claiming that the provision
of sanctions therein is a clear indication of the Presidents interference in the
fiscalautonomy of LGUs. The relevant portion of the assailed issuance reads,
thus:
All local authorities are further reminded that utilizing the 20% component of
the Internal Revenue Allotment, whether willfully or through negligence, for
any purpose beyond those expressly prescribed by law or public policy shall
be subject to the sanctions provided under the Local Government Code and
under such other applicable laws.45
Significantly, the issuance itself did not provide for sanctions. It did not
particularly establish a new set ofacts or omissions which are deemed
violations and provide the corresponding penalties therefor. It simply stated a
reminder to LGUs that there are existing rules to consider in the
disbursement of the 20% development fund and that non-compliance
therewith may render them liable to sanctions which are provided in the LGC
and other applicable laws. Nonetheless, this warning for possible imposition
of sanctions did not alter the advisory nature of the issuance. At any rate,
LGUs must be reminded that the local autonomy granted to them does not
completely severe them from the national government or turn them into
impenetrable states. Autonomy does not make local governments sovereign
within the state.46 InGanzon v. Court of Appeals,47 the Court reiterated:
Autonomy, however, is not meant to end the relation of partnership and
interdependence between the central administration and local government
units, or otherwise, to usher in a regime of federalism. The Charter has not
taken such a radical step.1avvphi1 Local governments, under the
Constitution, are subject to regulation, however limited, and for no other
purpose than precisely, albeit paradoxically, to enhance self-government.48
Thus, notwithstanding the local fiscal autonomy being enjoyed by LGUs, they
are still under the supervision of the President and maybe held accountable
for malfeasance or violations of existing laws. "Supervision is not
incompatible with discipline. And the power to discipline and ensure that the
laws be faithfully executed must be construed to authorize the President to
order an investigation of the act or conduct of local officials when in his
opinion the good of the public service so requires."49
Clearly then, the Presidents power of supervision is not antithetical to
investigation and imposition of sanctions. In Hon. Joson v. Exec. Sec.
Torres,50 the Court pointed out, thus: "Independently of any statutory
provision authorizing the President to conduct an investigation of the nature
involved in this proceeding, and in view of the nature and character of the
executive authority with which the President of the Philippines is invested,
the constitutional grant to him of power to exercise general supervision over
all local governments and to take care that the laws be faithfully executed
must be construed to authorize him to order an investigation of the act or
conduct of the petitioner herein. Supervision is not a meaningless thing. It is
an active power. It is certainly not without limitation, but it at least implies
authority to inquire into facts and conditions in order to render the power real
and effective. x x x."51 (Emphasis ours and italics in the original)
As in MC No. 2010-138, the Court finds nothing in two other questioned
issuances of the respondent, i.e., MC Nos. 2010-83 and 2011-08, that can be
construed as infringing onthe fiscal autonomy of LGUs. The petitioners claim
that the requirement to post other documents in the mentioned issuances
went beyond the letter and spirit of Section 352 of the LGC and R.A. No.
9184, otherwise known as the Government Procurement Reform Act, by
requiring that budgets, expenditures, contracts and loans, and procurement
plans of LGUs be publicly posted as well.52
Pertinently, Section 352 of the LGC reads:
Section 352. Posting of the Summary of Income and Expenditures. Local
treasurers, accountants, budget officers, and other accountable officers shall,
within thirty (30) days from the end of the fiscal year, post in at least three (3)
publicly accessible and conspicuous places in the local government unit a
summary of all revenues collected and funds received including the
appropriations and disbursements of such funds during the preceding fiscal
year.
R.A. No. 9184, on the other hand, requires the posting of the invitation to bid,
notice of award, notice to proceed, and approved contract in the procuring
entitys premises, in newspapers of general circulation, and the website of
the procuring entity.53
It is well to remember that fiscal autonomy does not leave LGUs with
unbridled discretion in the disbursement of public funds. They remain
accountable to their constituency. For, public office was created for the
benefit of the people and not the person who holds office.
The Court strongly enunciated in ABAKADA GURO Party List (formerly
AASJS), et al. v.Hon. Purisima, et al.,54 thus:
Public office is a public trust. It must be discharged by its holder not for his
own personal gain but for the benefit of the public for whom he holds it in
trust. By demanding accountability and service with responsibility, integrity,
loyalty, efficiency, patriotism and justice, all government officials and
employees havethe duty to be responsive to the needs of the people they are
called upon to serve.55
Thus, the Constitution strongly summoned the State to adopt and implement
a policy of full disclosure of all transactions involving public interest and
provide the people with the right to access public information.56 Section 352
of the LGC is a response to this call for transparency. It is a mechanism of
transparency and accountability of local government officials and is in fact
incorporated under Chapter IV of the LGC which deals with "Expenditures,
Disbursements, Accounting and Accountability."
In the same manner, R.A. No. 9184 established a system of transparency in
the procurement process and in the implementation of procurement contracts
in government agencies.57 It is the public monitoring of the procurement
process and the implementation of awarded contracts with the end in view of
guaranteeing that these contracts are awarded pursuant to the provisions of
the law and its implementing rules and regulations, and that all these
contracts are performed strictly according to specifications.58
The assailed issuances of the respondent, MC Nos. 2010-83 and 2011-08,
are but implementation of this avowed policy of the State to make public
officials accountable to the people. They are amalgamations of existing laws,
rules and regulation designed to give teeth to the constitutional mandate of
transparency and accountability.
A scrutiny of the contents of the mentioned issuances shows that they do
not, in any manner, violate the fiscal autonomy of LGUs. To be clear, "[f]iscal
autonomy means that local governments have the power to create their own
sources of revenue in addition to their equitable share in the national taxes
released by the national government, as well as the power to allocate their
resources in accordance withtheir own priorities.It extends to the preparation
of their budgets, and local officials in turn have to work within the constraints
thereof."59
It is inconceivable, however, how the publication of budgets, expenditures,
contracts and loans and procurement plans of LGUs required in the assailed
issuances could have infringed on the local fiscal autonomy of LGUs. Firstly,
the issuances do not interfere with the discretion of the LGUs in the
specification of their priority projects and the allocation of their budgets. The
posting requirements are mere transparency measures which do not at all
hurt the manner by which LGUs decide the utilization and allocation of their
funds.
Secondly, it appears that even Section 352 of the LGC that is being invoked
by the petitioners does not exclude the requirement for the posting of the
additional documents stated in MC Nos. 2010-83 and 2011-08. Apparently,
the mentioned provision requires the publication of "a summary of revenues
collected and funds received, including the appropriations and disbursements
of such funds." The additional requirement for the posting of budgets,
expenditures, contracts and loans, and procurement plans are well-within the
contemplation of Section 352 of the LGC considering they are documents
necessary for an accurate presentation of a summary of appropriations and
disbursements that an LGU is required to publish.
Finally, the Court believes that the supervisory powers of the President are
broad enough to embrace the power to require the publication of certain
documents as a mechanism of transparency. In Pimentel,Jr. v. Hon.
Aguirre,60 the Court reminded that localfiscal autonomy does not rule out
any manner of national government intervention by way of supervision, in
order to ensure that local programs, fiscal and otherwise, are consistent with
national goals. The President, by constitutional fiat, is the head of the
economic and planning agency of the government, primarily responsible for
formulating and implementing continuing, coordinated and integrated social
and economic policies, plans and programs for the entire country.61
Moreover, the Constitution, which was drafted after long years of dictatorship
and abuse of power, is now replete with numerous provisions directing the
adoption of measures to uphold transparency and accountability in
government, with a view of protecting the nation from repeating its atrocious
past. In particular, the Constitution commands the strict adherence to full
disclosure of information onall matters relating to official transactions and
those involving public interest. Pertinently, Section 28, Article II and Section
7, Article III of the Constitution, provide: Article II
Declaration of Principles and State Policies Principles
Section 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.
 Article III
Bill of Rights

Section 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.

In the instant case, the assailed issuances were issued pursuant to the policy
of promoting good governance through transparency, accountability and
participation. The action of the respondent is certainly within the
constitutional bounds of his power as alter ego of the President.

It is needless to say that the power to govern is a delegated authority from

the people who hailed the public official to office through the democratic
process of election. His stay in office remains a privilege which may be
withdrawn by the people should he betray his oath of office. Thus, he must
not frown upon accountability checks which aim to show how well he is
performing his delegated power. For, it is through these mechanisms of
transparency and accountability that he is able to prove to his constituency
that he is worthy of the continued privilege.

WHEREFORE, in view of the foregoing considerations, the petition is

DISMISSED for lack of merit.

SO ORDERED.
G.R. No. 187836 November 25, 2014
SOCIAL JUSTICE SOCIETY (SJS) OFFICERS, NAMELY, SAMSON S.
ALCANTARA, and VLADIMIR ALARIQUE T. CABIGAO, Petitioners,
vs.
ALFREDO S. LIM, in his capacity as mayor of the City of Manila,
Respondent.
x-----------------------x
G.R. No. 187916
JOSE L. ATIENZA, JR., BIENVINIDO M. ABANTE, MA. LOURDES M.
ISIP-GARCIA, RAFAEL P. BORROMEO JOCELYN DAWIS-ASUNCION,
minors MARIAN REGINA B. TARAN, MACAILA RICCI B. TARAN,
RICHARD KENNETH B. TARAN, represented and joined by their parents
RICHARD AND MARITES TARAN, minors CZARINA ALYSANDRA C.
RAMOS, CEZARAH ADRIANNA C. RAMOS, and CRISTEN AIDAN C.
RAMOS represented and joined by their mother DONNA C. RAMOS,
minors JAZMIN SYLLITA T. VILA AND ANTONIO T. CRUZ IV,
represented and joined by their mother MAUREEN C. TOLENTINO,
Petitioners,
vs.
MAYOR ALFREDO S. LIM, VICE MAYOR FRANCISCO DOMAGOSO,
COUNCILORS ARLENE W. KOA, MOISES T. LIM, JESUS FAJARDO
LOUISITO N. CHUA, VICTORIANO A. MELENDEZ, JOHN MARVIN C.
NIETO, ROLANDO M. VALERIANO, RAYMUNDO R. YUPANGCO,
EDWARD VP MACEDA, RODERICK D. V ALBUENA, JOSEFINA M.
SISCAR, SALVADOR PHILLIP H. LACUNA, LUCIANO M. VELOSO,
CARLO V. LOPEZ, ERNESTO F. RIVERA,1 DANILO VICTOR H. LACUNA,
JR., ERNESTO G. ISIP, HONEY H. LACUNA-PANGAN, ERNESTO M.
DIONISO, JR. and ERICK IAN O. NIEVA, Respondents.
x-----------------------x
CHEVRON PHILIPPINES INC., PETRON CORPORATION AND PILIPINAS
SHELL PETROLEUM CORPORATION, Intervenors.
DECISION
PEREZ, J.:
Challenged in these consolidated petitions2 is the validity of Ordinance No.
81873 entitled "AN ORDINANCE AMENDING ORDINANCE NO. 8119,
OTHERWISE KNOWN AS THE MANILA COMPREHENSIVE LAND USE
PLAN AND ZONING ORDINANCE OF 2006, BY CREATING A MEDIUM
INDUSTRIAL ZONE (1-2) AND HEAVY INDUSTRIAL ZONE (1-3), AND
PROVIDING FOR ITS ENFORCEMENT" enacted by the Sangguniang
Panlungsod of Manila (Sangguniang Panlungsod) on 14 May 2009.
The creation of a medium industrial zone (1-2) and heavy industrial zone (1-
3) effectively lifted the prohibition against owners and operators of
businesses, including herein intervenors Chevron Philippines, Inc. (Chevron),
Pilipinas Shell Petroleum Corporation (Shell), and Petron Corporation
(Petron), collectively referred to as the oil companies, from operating in the
designated commercial zone an industrial zone prior to the enactment of
Ordinance No. 80274 entitled "AN ORDINANCE RECLASSIFYING THE
LAND USE OF THAT PORTION OF LAND BOUNDED BY THE
PASIGRIVER IN THE NORTH, PNR RAILROAD TRACK IN THE EAST,
BEATA ST. IN THE SOUTH, PALUMPONG ST. IN THE SOUTHWEST AND
ESTERO DE PANDACAN IN THE WEST, PNR RAILROAD IN THE
NORTHWEST AREA, ESTERO DE PANDACAN IN THE NORTHEAST,
PASIG RIVER IN THE SOUTHEAST AND DR. M. L. CARREON IN THE
SOUTHWEST, THE AREA OF PUNTA, STA.ANA BOUNDED BY THE
PASIG RIVER, MARCELINO OBRERO ST., MAYO 28 ST. AND THE F.
MANALO STREET FROM INDUSTRIAL II TO COMMERCIAL I," and
Ordinance No. 81195 entitled "AN ORDINANCE ADOPTING THE MANILA
COMPREHENSIVE LAND USE PLAN AND ZONING REGULATIONS OF
2006 AND PROVIDING FOR THE ADMINISTRATION, ENFORCEMENT
AND AMENDMENT THERETO."
The Parties
Petitioners allege the parties respective capacity to sue and be sued, viz:
Petitioners Residence Suing capacity aside from being
in Manila residents of Manila other persona
circumstances
G.R. No. 187836
SJS Officer Samson S. Alcantara Not mentioned in Manila taxpayer;
(Alcantara) the petition; One of the petitioners in SJS v.
holding office in Atienza (G.R. No. 156052);*
Ermita, Manila Pesident of ABAKADA GURO
PARTY LIST with members who

S Officer Vladimir Alarique T.
bigao (Cabigao)
* The allegation is inaccurate. SJS Officer Alcantara is actually one of the joined by their mother Maureen C.
counsels for petitioner SJS in G.R. No. 156052. The petitioners in that caseTolentino
are the SJS itself, Cabigao and Bonifacio S. Tumbokon (Tumbokon).
G.R. No. 187916
rmer Mayor Jose L. Atienza, Jr.
ayor Atienza)
envinido M. Abante
. Lourdes M. Isip-Garcia
fael P. Borromeo
celyn Dawis-Asuncion
nors Marian Regina B. Taran,
calia Ricci B. Taran, Richard
nneth B. Taran, represented and
ned by their parents Richard and
rites Taran
nors Czarina Alysandra C. Ramos,
zarah Adrianna C. Ramos, and
are residents of the City Cristen
of Manila
Aidan C. Ramos represented taxpayers
and joined by
Pandacan One of the petitioners in their
SJS v.mother Donna c. Ramos
Atienza (G.R. No. 156052)
Minors Jasmin Syllita T. Vila and Sta. Ana Citizens, real estate owners and
Antonio T. Cruz IV, represented and taxpayers
Respondents Sued in their capacity as
San Andres Former Mayor of Manila;
Secretary of Department of
Environment and Natural G.R. Nos. 187836 and 187916
Resources (DENR)
Former Mayor Alfredo S. Lim (Mayor Lim) Incumbent Mayor of Manila at
Sta. Ana Citizen and taxpayer; the time of the filing of the
member of the House of present petitions
Representatives
San Miguel Incumbent City Councilor of the
City of Manila Respondents Sued in their capacity as
Paco Incumbent City Councilor of the
City of Manila
G.R. No. 187916
Sta. Mesa Incumbent City Councilor of the
Vice-Mayor Francisco Domagoso (Vice-Mayor Vice-Mayor and Presiding Officer
City of Manila
Domagoso) of the City Council of Manila
Paco Citizens, real estate owners and
Arlene Woo Koa Principal author of City
taxpayers
Ordinance No. 8187
Moises T. Lim, Jesus Fajardo, Louisito N. Chua, Victoriano Personal and official capacities as
A. Melendez, John Marvin Nieto, Rolando M. Valeriano, councilors who voted and approved
Raymondo R. Yupangco, Edward VP Maceda, Roderick D. City Ordinance No. 8187
Tondo Citizens, real estate owners and
Valbuena, Josefina M. Siscar, Phillip H. Lacuna, Luciano
Veloso, Carlo V. Lopez, Ernesto F. Rivera,6 Danilo
tor H. Lacuna, Jr., Ernesto G. Isip, Honey H. Lacuna-
ngan, Ernesto M. Dionisio, Jr., Erick Ian O. Nieva
The following intervenors, all of which are corporations organized under
Philippine laws, intervened:7
Intervenors Nature of Business
evron Philippines, importing, distributing and marketing of petroleum products
. (CHEVRON) in the Philippines since 1922
pinas Shell Petroleum Corporation manufacturing, refining, importing, distributing and
HELL) marketing of petroleum products in the Philippines
tron Corporation (PETRON) manufacturing, refining, importing, distributing and
marketing of petroleum products in the Philippines
They claim that their rights with respect to the oil depots in Pandacan would
be directly affected by the outcome of these cases.
The Antecedents
These petitions are a sequel to the case of Social Justice Society v. Mayor
Atienza, Jr.8 (hereinafter referred to asG.R. No. 156052), where the Court
found: (1) that the ordinance subject thereof Ordinance No. 8027 was
enacted "to safeguard the rights to life, security and safety of the inhabitants
of Manila;"9 (2) that it had passed the tests of a valid ordinance; and (3) that
it is not superseded by Ordinance No. 8119.10 Declaring that it is
constitutional and valid,11 the Court accordingly ordered its immediate
enforcement with a specific directive on the relocation and transfer of the
Pandacan oil terminals.12
Highlighting that the Court has soruled that the Pandacan oil depots should
leave, herein petitioners now seek the nullification of Ordinance No. 8187,
which contains provisions contrary to those embodied in Ordinance No.
8027. Allegations of violation of the right to health and the right to a healthful
and balanced environment are also included.
For a better perspective of the facts of these cases, we again trace the
history of the Pandacan oil terminals, aswell as the intervening events prior
to the reclassification of the land use from Industrial II to Commercial I under
Ordinance No. 8027 until the creation of Medium Industrial Zone and Heavy
Industrial Zone pursuant to Ordinance No. 8187.
History of the Pandacan
Oil Terminals
We quote the following from the Resolution of the Court in G.R. No. 156052:
Pandacan (one of the districts of the City of Manila) is situated along the
banks of the Pasig [R]iver. Atthe turn of the twentieth century, Pandacan was
unofficially designated as the industrial center of Manila. The area, then
largely uninhabited, was ideal for various emerging industries as the nearby
river facilitated the transportation of goods and products. In the 1920s, it was
classifiedas an industrial zone. Among its early industrial settlers werethe oil
companies. x x x On December 8, 1941, the Second World War reached the
shores of the Philippine Islands. x x x [I]n their zealous attempt to fend off the
Japanese Imperial Army, the United States Army took control of the
Pandacan Terminals and hastily made plans to destroy the storage facilities
to deprive the advancing Japanese Army of a valuable logistics weapon. The
U.S. Army burned unused petroleum, causing a frightening conflagration.
Historian Nick Joaquin recounted the events as follows:
After the USAFFE evacuated the City late in December 1941, all army fuel
storage dumps were set on fire. The flames spread, enveloping the City in
smoke, setting even the rivers ablaze, endangering bridges and all riverside
buildings. For one week longer, the "open city" blazeda cloud of smoke
by day, a pillar of fire by night.
The fire consequently destroyed the Pandacan Terminals and rendered its
network of depots and service stations inoperative.
After the war, the oil depots were reconstructed. Pandacan changed as
Manila rebuilt itself. The three major oil companies resumed the operation of
their depots. But the district was no longer a sparsely populated industrial
zone; it had evolved into a bustling, hodgepodge community. Today,
Pandacan has become a densely populated area inhabited by about 84,000
people, majority of whom are urban poor who call it home. Aside from
numerous industrial installations, there are also small businesses, churches,
restaurants, schools, daycare centers and residences situated there.
Malacaang Palace, the official residence of the President of the Philippines
and the seat of governmental power, is just two kilometers away. There is a
private school near the Petron depot. Along the walls of the Shell facility are
shanties of informal settlers. More than 15,000 students are enrolled in
elementary and high schools situated near these facilities. A university with a
student population of about 25,000 is located directly across the depot on the
banks of the Pasig [R]iver.
The 36-hectare Pandacan Terminals house the oil companies distribution
terminals and depot facilities.1wphi1 The refineries of Chevron and Shell in
Tabangao and Bauan, both in Batangas, respectively, are connected to the
Pandacan Terminals through a 114-kilometer underground pipeline system.
Petrons refinery in Limay, Bataan, on the other hand, also services the
depot. The terminals store fuel and other petroleum products and supply
95% of the fuel requirements of Metro Manila, 50% of Luzons consumption
and 35% nationwide. Fuel can also be transported through barges along the
Pasig [R]iver ortank trucks via the South Luzon Expressway.13 (Citations
omitted)
Memorandum of Agreement (MOA)
dated 12 October 2001 between the oil companies
and the Department of Energy (DOE)
On 12 October 2001, the oil companies and the DOE entered into a MOA14
"in light of recent international developments involving acts of terrorism on
civilian and government landmarks,"15 "potential new security risks relating
to the Pandacan oil terminals and the impact on the surrounding community
which may be affected,"16 and "to address the perceived risks posed by the
proximity of communities, businesses and offices to the Pandacan oil
terminals, consistent with the principle of sustainable development."17 The
stakeholders acknowledged that "there is a need for a comprehensive study
to address the economic, social, environmental and security concerns with
the end in view of formulating a Master Plan to address and minimize the
potential risks and hazards posed by the proximity of communities,
businesses and offices to the Pandacan oil terminals without adversely
affecting the security and reliability of supply and distribution of petroleum
products to Metro Manila and the rest of Luzon, and the interests of
consumers and users of such petroleum products in those areas."18
The enactment of Ordinance No. 8027
against the continued stay of the oil depots
The MOA, however, was short-lived.
On 20 November 2001, during the incumbency of former Mayor Jose L.
Atienza, Jr. (Mayor Atienza) nowone of the petitioners in G.R. No. 187916
the Sangguniang Panlungsod enacted Ordinance No. 802719 reclassifying
the use of the land in Pandacan, Sta. Ana, and its adjoining areas from
Industrial II to Commercial I.
The owners and operators of the businesses thus affected by the
reclassification were given six months from the date of effectivity of the
Ordinance within which to stop the operation of their businesses.
Nevertheless, the oil companies weregranted an extension of until 30 April
2003 within which to comply with the Ordinance pursuant to the following:
(1) Memorandum of Understanding (MOU)20 dated 26 June 2002
between the City of Manila and the Department of Energy (DOE), on
the one hand, and the oil companies, on the other, where the parties
agreed that "the scaling down of the Pandacan Terminals [was] the
most viable and practicable option"21 and committed to adopt
specific measures22 consistent with the said objective;
(2) Resolution No. 97 dated 25 July 200223 of the Sangguniang
Panlungsod, which ratified the 26 June 2002 MOU but limited the
extension of the period within which to comply to six months from 25
July 2002; and
(3) Resolution No. 13 dated 30 January 200324 of the Sanguniang
Panlungsod, which extended the validity of Resolution No. 97 to 30
April 2003, authorized then Mayor Atienza to issue special business
permits to the oil companies, and called for a reassessment of the
ordinance.
Social Justice Society v. Atienza (G.R. No. 156052):
The filing of an action for mandamus
before the Supreme Court
to enforce Ordinance No. 8027
In the interim, an original action for mandamus entitled Social Justice Society
v. Atienza, Jr. docketed as G.R. No. 15605225 was filed on 4 December
2002 by Tumbokon and herein petitioners SJS and Cabigao against then
Mayor Atienza. The petitioners sought to compel former Mayor Atienza to
enforce Ordinance No. 8027 and cause the immediate removal of the
terminals of the oil companies.26
Issuance by the Regional Trial Court (RTC)
of writs of preliminary prohibitory injunction
and preliminary mandatory injunction,
and status quo order in favor of the oil companies
Unknown to the Court, during the pendency of G.R. No. 156052, and before
the expiration of the validity ofResolution No. 13, the oil companies filed the
following actions before the Regional Trial Court of Manila: (1) an action for
the annulment of Ordinance No. 8027 with application for writs of preliminary
prohibitory injunction and preliminary mandatory injunction by Chevron; (2)
a petition for prohibition and mandamus also for the annulment of the
Ordinance with application for writs of preliminary prohibitory injunction and
preliminary mandatory injunction by Shell; and (3) a petition assailing the
validity of the Ordinance with prayer for the issuance of a writ of preliminary
injunction and/or temporary restraining order (TRO) by Petron.27
Writs of preliminary prohibitory injunction and preliminary mandatory
injunction were issued in favor of Chevron and Shell on 19 May 2003.
Petron, on the other hand, obtained a status quo order on 4 August 2004.28
The Enactment of Ordinance No. 8119 defining the Manila land use plan and
zoning regulations
On 16 June 2006, then Mayor Atienza approved Ordinance No. 8119 entitled
"An Ordinance Adopting the Manila Comprehensive Land Use Plan and
Zoning Regulations of 2006 and Providing for the Administration,
Enforcement and Amendment thereto."29
Pertinent provisions relative to these cases are the following:
(a) Article IV, Sec. 730 enumerating the existing zones or districts in
the City of Manila;
(b) Article V, Sec. 2331 designating the Pandacan oil depot area as
a "Planned Unit Development/Overlay Zone" (O-PUD); and
(c) the repealing clause, which reads:
SEC. 84. Repealing Clause. All ordinances, rules, regulations in conflict
with the provisions of this Ordinance are hereby repealed; PROVIDED, That
the rights that are vested upon the effectivity of this Ordinance shall not be
impaired.32
7 March 2007 Decision in G.R. No. 156052;
The mayor has the mandatory legal duty to enforce
Ordinance No. 8027 and order the removal of the Pandacan terminals
On 7 March 2007, the Court granted the petition for mandamus, and directed
then respondent Mayor Atienza to immediately enforce Ordinance No.
8027.33
Confined to the resolution of the following issues raised by the petitioners, to
wit:
1. whether respondent [Mayor Atienza]has the mandatory legal duty
to enforce Ordinance No. 8027 and order the removal of the
Pandacan Terminals, and
2. whether the June 26, 2002 MOU and the resolutions ratifying it
can amend or repeal Ordinance No. 8027.34
the Court declared:
x x x [T]he Local Government Code imposes upon respondent the duty, as
city mayor, to "enforce all laws and ordinances relative to the governance of
the city." One of these is Ordinance No. 8027. As the chief executive of the
city, he has the duty to enforce Ordinance No. 8027 as long as it has not
been repealed by the Sanggunian or annulled by the courts. He has no other
choice. It is his ministerial duty to do so. x x x
xxxx
The question now is whether the MOU entered into by respondent with the oil
companies and the subsequent resolutions passed by the Sanggunianhave
made the respondents duty to enforce Ordinance No. 8027 doubtful, unclear
or uncertain. x x x
We need not resolve this issue. Assuming that the terms of the MOU were
inconsistent with Ordinance No. 8027, the resolutions which ratified it and
made it binding on the Cityof Manila expressly gave it full force and effect
only until April 30, 2003. Thus, at present, there is nothing that legally hinders
respondent from enforcing Ordinance No. 8027.
Ordinance No. 8027 was enacted right after the Philippines, along with the
rest of the world, witnessed the horror of the September 11, 2001 attack on
the Twin Towers of the World Trade Center in New York City. The objective
of the ordinance is toprotect the residents of Manila from the catastrophic
devastation that will surely occur in case of a terrorist attack on the
Pandacan Terminals. No reason exists why such a protective measure
should be delayed.35 (Emphasis supplied; citations omitted)
13 February 2008 Resolution in G.R. No. 156052;
Ordinance No. 8027 is constitutional
The oil companies and the Republic of the Philippines, represented by the
DOE, filed their motions for leave to intervene and for reconsideration of the
7 March 2007 Decision. During the oral arguments, the parties submitted to
the power of the Court torule on the constitutionality and validity of the
assailed Ordinance despite the pendency of the cases in the RTC.36
On 13 February 2008, the Court granted the motions for leave to intervene of
the oil companies and the Republic of the Philippines but denied their
respective motions for reconsideration. The dispositive portion of the
Resolution reads:
WHEREFORE, x x x
We reiterate our order to respondent Mayor of the City of Manila to enforce
Ordinance No. 8027. In coordination with the appropriate agencies and other
parties involved, respondent Mayor is hereby ordered to oversee the
relocation and transfer of the Pandacan Terminals out of its present site.37
13 February 2008 Resolution in G.R. No. 156052;
Ordinance No. 8027 was not impliedly repealed
by Ordinance No. 8119
The Court also ruled that Ordinance No. 8027 was not impliedly repealed by
Ordinance No. 8119. On this score, the Court ratiocinated:
For the first kind of implied repeal, there must be an irreconcilable conflict
between the two ordinances. There is no conflict between the two
ordinances. Ordinance No. 8027 reclassified the Pandacan area from
Industrial II to Commercial I. Ordinance No. 8119, Section 23, designated it
as a "Planned Unit Development/Overlay Zone (O-PUD)." In its Annex "C"
which defined the zone boundaries, the Pandacan area was shown to be
within the "High Density Residential/Mixed Use Zone (R-3/MXD)." x x x
[B]oth ordinances actually have a common objective, i.e., to shift the zoning
classification from industrial to commercial (Ordinance No. 8027) or mixed
residential commercial (Ordinance No. 8119)
xxxx
Ordinance No. 8027 is a special law since it deals specifically with a certain
area described therein (the Pandacan oil depot area) whereas Ordinance No.
8119 can be considered a general law as it covers the entire city of Manila.
xxxx
x x x The repealing clause of Ordinance No. 8119 cannot be taken to indicate
the legislative intent to repeal all prior inconsistent laws on the subject
matter, including Ordinance No. 8027, a special enactment, since the
aforequoted minutes (an official record of the discussions in the Sanggunian)
actually indicated the clear intent to preserve the provisions of Ordinance No.
8027.38
Filing of a draft Resolution amending Ordinance No. 8027 effectively allowing
the oil depots to stay in the Pandacan area; Manifestation and
Motion to forestall the passing of the new Ordinance filed in G.R. No. 156052
On 5 March 2009, respondent then Councilor Arlene W. Koa, filed with the
Sangguniang Panlungsod a draft resolution entitled "An Ordinance
Amending Ordinance No. 8119 Otherwise Known as The Manila
Comprehensive Land Use Plan and Zoning Ordinance of 2006 by Creating a
Medium Industrial Zone (1-2) and Heavy Industrial Zone (1-3) and Providing
for its Enforcement."39 Initially numbered as Draft Ordinance No. 7177, this
was later renumbered as Ordinance No. 8187, the assailed Ordinance in
these instant petitions.
Considering that the provisions thereof run contrary to Ordinance No. 8027,
the petitioners in G.R. No. 156052 filed a "Manifestation and Motion to: a)
Stop the City Council of Manila from further hearing the amending ordinance
to Ordinance No. 8027; [and] b) Transfer the monitoring of the enforcement
of the Resolution of the Honorable Court on this case dated 13 February
2008 from Branch 39, Manila Regional Trial Court to the Supreme Court."40
28 April 2009 Resolution in G.R. No. 156052;
Second Motion for Reconsideration denied with finality;
succeeding motions likewise denied or otherwise noted without action
On 28 April 2009, pending the resolution of the Manifestation and Motion, the
Court denied with finalitythe second motion for reconsideration dated 27
February 2008 of the oil companies.41
It further ruled that no further pleadings shall be entertained in the case.42
Succeeding motions were thus deniedand/or noted without action. And, after
the "Very Urgent Motion to Stop the Mayor of the City of Manila from Signing
Draft Ordinance No. 7177 and to Cite Him for Contempt if He Would Do So"
filed on 19 May 2009 was denied on 2 June 2009 for being moot,43 all
pleadings pertaining to the earlier motion against the drafting of an ordinance
to amend Ordinance No. 8027 were noted without action.44
The Enactment of Ordinance No. 8187
allowing the continued stay of the oil depots
On 14 May 2009, during the incumbency of former Mayor Alfredo S. Lim
(Mayor Lim), who succeeded Mayor Atienza, the Sangguniang Panlungsod
enacted Ordinance No. 8187.45
The new Ordinance repealed, amended, rescinded or otherwise modified
Ordinance No. 8027, Section 23 of Ordinance No. 8119, and all other
Ordinances or provisions inconsistent therewith46 thereby allowing, once
again, the operation of "Pollutive/Non-Hazardous and Pollutive/Hazardous
manufacturing and processing establishments" and "Highly Pollutive/Non-
Hazardous[,] Pollutive/Hazardous[,] Highly Pollutive/Extremely Hazardous[,]
Non-Pollutive/Extremely Hazardous; and Pollutive/Extremely Hazardous; and
Pollutive/Extremely Hazardous manufacturing and processing
establishments" within the newly created Medium Industrial Zone (1-2) and
Heavy Industrial Zone (1-3) in the Pandacan area.
Thus, where the Industrial Zoneunder Ordinance No. 8119 was limited to
Light Industrial Zone (I-1), Ordinance No. 8187 appended to the list a
Medium Industrial Zone (I-2) and a Heavy Industrial Zone (I-3), where
petroleum refineries and oil depots are now among those expressly allowed.
Hence these petitions.
The Petitions
G.R. No. 187836
To support their petition for prohibition against the enforcement of Ordinance
No. 8187, the petitioner Social Justice Society (SJS) officers allege that:
1. The enactment of the assailed Ordinance is not a valid exercise of
police power because the measures provided therein do not promote
the general welfare of the people within the contemplation of the
following provisions of law:
a) Article III, Section 18 (kk)47 of Republic Act No. 409
otherwise known as the "Revised Charter of the City of
Manila," which provides that the Municipal Board shall have
the legislative power to enact all ordinances it may deem
necessary and proper;
b) Section 1648 of Republic Act No. 7160 known as the
Local Government Code, which defines the scope of the
general welfare clause;
2. The conditions at the time the Court declared Ordinance No. 8027
constitutional in G.R. No. 156052 exist to this date;
3. Despite the finality of the Decision in G.R. No. 156052, and
notwithstanding that the conditions and circumstances warranting the
validity of the Ordinance remain the same, the Manila City Council
passed a contrary Ordinance, thereby refusing to recognize that
"judicial decisions applying or interpreting the laws or the
Constitution form part of the legal system of the Philippines;"49 and
4. Ordinance No. 8187 is violative of Sections 15 and 16, Article II of
the Constitution of the Philippines on the duty of the State "to protect
and promote the right to health of the people"50 and "protect and
advance the right of the people to a balanced and healthful
ecology."51 Petitioners pray that Ordinance No. 8187 of the City of
Manila be declared null and void, and that respondent, and all
persons acting under him, be prohibited from enforcing the same.
G.R. No. 187916
The petition for Prohibition, Mandamus and Certiorari with Prayer for
Temporary Restraining Order and/or Injunction against the enforcement of
Ordinance No. 8187 of former Secretary of Department of Environment and
Natural Resources and then Mayor Atienza, together with other residents
and taxpayers of the City of Manila, also alleges violation of the right to
health of the people and the right to a healthful and balanced environment
under Sections 15 and 16 of the Constitution.
Petitioners likewise claim that the Ordinance is in violation of the following
health and environment-related municipal laws, and international conventions
and treaties to which the Philippines is a state party:
1. Municipal Laws
(a) Sections 4,52 12,53 1954 and 3055 of Republic Act No.
8749 otherwise known as the Philippine Clean Air Act;
(b) Environment Code (Presidential Decree No. 1152);
 (c) Toxic and Hazardous Wastes Law (Republic Act No.
6969); and
(d) Civil Code provisions on nuisance and human relations;
2. International Conventions and Treaties to which the Philippines is
a state party
a. Section 1 of the Universal Declaration of Human Rights,
which states that "[e]veryone has the right to life, liberty and
security of person;"
b. Articles 6,56 2457 and 2758 of the Convention on the
Rights of the Child, summarized by the petitioners in the
following manner:
1. the human right to safe and healthy environment[;]
2. human right to the highest attainable standard of health[;]
3. the human right to ecologically sustainable development[;]
4. the human right to an adequate standard of living, including
access to safe food and water[;]
5. the human right of the child to live in an environment appropriate
for physical and mental development[; and]
6. the human right to full and equal participation for all persons in
environmental decision-making and development planning, and in
shaping decisions and policies affecting ones community, at the
local, national and international levels.59
Petitioners likewise posit that the title of Ordinance No. 8187 purports to
amend or repeal Ordinance No. 8119 when it actually intends to repeal
Ordinance No. 8027. According to them, Ordinance No. 8027 was never
mentioned in the title and the body of the new ordinance in violation of
Section 26, Article VI of the 1987 Constitution, which provides that every bill
passed by Congress shall embrace only one subject which shall be
expressed in the title thereof.
Also pointed out by the petitioners is a specific procedure outlined in
Ordinance No. 8119 that should be observed when amending the zoning
ordinance. This is provided for under Section 81 thereof, which reads:
SEC. 81. Amendments to the Zoning Ordinance. The proposed amendments
to the Zoning Ordinance asreviewed and evaluated by the City Planning and
Development Office (CPDO)shall be submitted to the City Council for
approval of the majority of the Sangguniang Panlungsod members. The
amendments shall be acceptable and eventually approved: PROVIDED, That
there is sufficient evidence and justification for such proposal; PROVIDED
FURTHER,That such proposal is consistent with the development goals,
planning objectives, and strategies of the Manila Comprehensive Land Use
Plan. Said amendments shall take effect immediately upon approval or after
thirty (30) days from application.
Petitioners thus pray that:
1. upon filing of [the] petition, [the] case be referred to the Court [E]n
Banc, and setting (sic) the case for oral argument;
2. upon the filing of [the] petition, a temporary restraining order be
issued enjoining the respondents from publishing and posting Manila
City Ordinance No. 8187 and/or posting of Manila City Ordinance
No. 8187; and/or taking any steps to implementing (sic) and/or
enforce the same and after due hearing, the temporary restraining
order be converted to a permanent injunction;
3. x x x Manila City Ordinance 8187 [be declared] as null and void for
being repugnant to the Constitution and existing municipal laws and
international covenants;
4. x x x the respondents [be ordered] to refrain from enforcing and/or
implementing Manila City Ordinance No. 8187;
5. x x x respondent City Mayor Alfredo S. Lim [be enjoined] from
issuing any permits (business or otherwise) to all industries whose
allowable uses are anchored under the provisions of Manila
Ordinance No. 8187; and
6. x x x respondent Mayor of Manila Alfredo S. Lim [be ordered] to
comply with the Order of the Honorable Court in G.R. 156052 dated
February 13, 2008.60
The Respondents Position on the Consolidated Petitions
Respondent former Mayor Lim
In his Memorandum,61 former Mayor Lim, through the City Legal Officer,
attacks the petitioners lack of legal standing to sue. He likewise points out
that the petitioners failed to observe the principle of hierarchy of courts.
Maintaining that Ordinance No. 8187 is valid and constitutional, he expounds
on the following arguments:
On the procedural issues, he contends that: (1) it is the function of the
Sangguniang Panlungsod to enact zoning ordinances, for which reason, it
may proceed to amend or repeal Ordinance No. 8119 without prior referral to
the Manila Zoning Board of Adjustment and Appeals (MZBAA) as prescribed
under Section 80 (Procedure for Re-Zoning) and the City Planning and
Development Office (CPDO) pursuant to Section 81 (Amendments to the
Zoning Ordinance) of Ordinance No. 8119, especially when the action
actually originated from the Sangguniang Panlungsod itself; (2) the
Sangguniang Panlungsod may, in the later ordinance, expressly repeal all or
part of the zoning ordinance sought to be modified; and (3) the provision
repealing Section 23 of Ordinance No. 8119 is not violative of Section 26,
Article VI of the 1987 Constitution, which requires that every bill must
embrace only one subject and that such shall be expressed in the title.
On the substantive issues, he posits that the petitions are based on
unfounded fears; that the assailed ordinance is a valid exercise of police
power; that it is consistent with the general welfare clause and public policy,
and is not unreasonable; that it does not run contrary to the Constitution,
municipal laws, and international conventions; and that the petitioners failed
to overcome the presumption of validity of the assailed ordinance.
Respondents Vice-Mayor Domagoso and the City Councilors who voted in
favor of the assailed ordinance
On 14 September 2012, after the Court gave the respondents several
chances to submit their Memorandum,62 they, through the Secretary of the
Sangguniang Panlungsod, prayed that the Court dispense with the filing
thereof.
In their Comment,63 however, respondents offered a position essentially
similar to those proffered by former Mayor Lim.
The Intervenors Position on the Consolidated Petitions
On the other hand, the oil companies sought the outright dismissal of the
petitions based on alleged procedural infirmities, among others, incomplete
requisites of judicial review, violation of the principle of hierarchy of courts,
improper remedy, submission of a defective verification and certification
against forum shopping, and forum shopping.
As to the substantive issues, they maintain, among others, that the assailed
ordinance is constitutional and valid; that the Sangguniang Panlalawigan is in
the best position to determine the needs of its constituents; that it is a valid
exercise of legislative power; that it does not violate health and environment-
related provisions of the Constitution, laws, and international conventions
and treaties to which the Philippines is a party; that the oil depots are not
likely targets of terrorists; that the scaling down of the operations in
Pandacan pursuant to the MOU has been followed; and that the people are
safe in view of the safety measures installed in the Pandacan terminals.
Incidentally, in its Manifestation dated 30 November 2010,64 Petron informed
the Court that it will "cease [the] operation of its petroleum product storage
facilities"65 in the Pandacan oil terminal not later than January 2016 on
account of the following:
2.01 Environmental issues, many of which are unfounded, continually crop
up and tarnish the Companys image.
2.02. The location of its Pandacanterminal is continually threatened, and
made uncertain preventing long-term planning, by the changing local
government composition. Indeed, the relevant zoning ordinances have been
amended three (3) times, and their validity subjected to litigation.66
Intervening Events
On 28 August 2012, while the Court was awaiting the submission of the
Memorandum of respondents Vice-Mayor Domagoso and the councilors who
voted in favor of the assailed Ordinance, the Sangguniang Panlungsod,
which composition had already substantially changed, enacted Ordinance
No. 828367 entitled "AN ORDINANCE AMENDING SECTION 2 OF
ORDINANCE NO. 8187 BY RECLASSIFYING THE AREA WHERE
PETROLEUM REFINERIES AND OIL DEPOTS ARE LOCATED FROM
HEAVY INDUSTRIAL (1-3) TO HIGH INTENSITY COMMERCIAL/MIXED
USE ZONE (C3/MXD).
The new ordinance essentially amended the assailed ordinance to exclude
the area where petroleum refineries and oil depots are located from the
Industrial Zone.
Ordinance No. 8283 thus permits the operation of the industries operating
within the Industrial Zone. However, the oil companies, whose oil depots are
located in the High Intensity Commercial/Mixed Use Zone (C3/MXD), are
given until the end of January 2016 within which to relocate their terminals.
Former Mayor Lim, who was then the incumbent mayor, did not support the
amendment. Maintaining that the removal of the oil depots was prejudicial to
public welfare, and, on account of the pending cases in the Supreme Court,
he vetoed Ordinance No. 8283 on 11 September 2012.68
On 28 November 2012, former Mayor Lim filed a Manifestation informing this
Court that the Sangguniang Panlungsod voted to override the veto, and that
he, in turn, returned it again with his veto. He likewise directed the
Sangguniang Panlungsod to append his written reasons for his veto of the
Ordinance, so that the same will be forwarded to the President for his
consideration in the event that his veto is overridden again.69
On 11 December 2012, Shell also filed a similar Manifestation.70
Meanwhile, three days after former Mayor Lim vetoed the new ordinance,
Atty. Luch R. Gempis, Jr. (Atty. Gempis), Secretary of the Sangguniang
Panlungsod, writing on behalf of respondents Vice-Mayor Domagoso and the
City Councilors of Manila who voted in favor of the assailed Ordinance, finally
complied with this Courts Resolution dated 17 July 2012 reiterating its earlier
directives71 to submit the said respondents Memorandum.
In his Compliance/Explanation with Urgent Manifestation72 dated 13
September 2012, Atty. Gempis explained that it was not his intention to show
disrespect to this Court or to delay or prejudice the disposition of the cases.
According to him, he signed the Comment prepared by respondents Vice-
Mayor and the City Councilors only to attest that the pleading was personally
signed by the respondents. He clarified that he was not designated as the
legal counsel of the respondents as, in fact, he was of the impression that,
pursuant to Section 481(b)(3) of the Local Government Code,73 it is the City
Legal Officer who isauthorized to represent the local government unit or any
official thereof in a litigation. It was for the same reason that he thought that
the filing of a Memorandum may already be dispensed with when the City
Legal Officer filed its own on 8 February 2010. He further explained that the
Ordinance subject of these cases was passed during the 7th Council (2007-
2010); that the composition of the 8th Council (2010-2013) had already
changed after the 2010 elections; and that steps were already taken to
amend the ordinance again. Hence, he was in a dilemma as to the position of
the Sangguniang Panlungsod at the time he received the Courts Resolution
of 31 May 2011.
Atty. Gempis, thus, prayed that the Court dispense with the filing of the
required memorandum in view of the passing of Ordinance No. 8283.
Issue
The petitioners arguments are primarily anchored on the ruling of the Court
in G. R. No. 156052 declaring Ordinance No. 8027 constitutional and valid
after finding that the presence of the oil terminals in Pandacan is a threat to
the life and security of the people of Manila. From thence, the petitioners
enumerated constitutional provisions, municipal laws and international
treaties and conventions on health and environment protection allegedly
violated by the enactment of the assailed Ordinance to support their position.
The resolution of the present controversy is, thus, confined to the
determination of whether or not the enactment of the assailed Ordinance
allowing the continued stay of the oil companies in the depots is, indeed,
invalid and unconstitutional.
Our Ruling
We see no reason why Ordinance No. 8187 should not be stricken down
insofar as the presence of the oil depots in Pandacan is concerned.
I
We first rule on the procedural issues raised by the respondents and the oil
companies.
At the outset, let it be emphasized that the Court, in G.R. No. 156052, has
already pronounced that the matter of whether or not the oil depots should
remain in the Pandacan area is of transcendental importance to the residents
of Manila.74
We may, thus, brush aside procedural infirmities, if any, as we had in the
past, and take cognizance of the cases75 if only to determine if the acts
complained of are no longer within the bounds of the Constitution and the
laws in place.76
Put otherwise, there can be no valid objection to this Courts discretion to
waive one or some procedural requirements if only to remove any
impediment to address and resolve the serious constitutional question77
raised in these petitions of transcendental importance, the same having
farreaching implications insofar as the safety and general welfare of the
residents of Manila, and even its neighboring communities, are concerned.
Proper Remedy
Respondents and intervenors argue that the petitions should be outrightly
dismissed for failure on the part of the petitioners to properly apply related
provisions of the Constitution, the Rules of Court, and/or the Rules of
Procedure for Environmental Cases relative to the appropriate remedy
available to them.
To begin with, questioned is the applicability of Rule 6578 of the Rules of
Court to assail the validity and constitutionality of the Ordinance.
there is no appeal, or any plain,
speedy, and adequate remedy
in the ordinary course of law
Rule 65 specifically requires that the remedy may be availed of only when
"there is no appeal, or any plain, speedy, and adequate remedy in the
ordinary course of law."79
Shell argues that the petitioners should have sought recourse before the first
and second level courts under the Rules of Procedure for Environmental
Cases,80 which govern "the enforcement or violations of environmental and
other related laws, rules and regulations."81 Petron additionally submits that
the most adequate remedy available to petitioners is to have the assailed
ordinance repealed by the Sangguniang Panlungsod. In the alternative, a
local referendum may be had. And, assuming that there were laws violated,
the petitioners may file an action for each alleged violation of law against the
particular individuals that transgressed the law.
It would appear, however, that the remedies identified by the intervenors
prove to be inadequate toresolve the present controversies in their entirety
owing to the intricacies of the circumstances herein prevailing.
The scope of the Rules of Procedure for Environmental Cases is embodied
in Sec. 2, Part I, Rule I thereof. It states that the Rules shall govern the
procedure in civil, criminal and special civil actions before the Metropolitan
Trial Courts, Municipal Trial Courts in Cities, Municipal Trial Courts and
Municipal Circuit Trial Courts, and the Regional Trial Courts involving
enforcement or violations of environmental and other related laws, rules and
regulations such as but not limited to the following:
(k) R.A. No. 6969, Toxic Substances and Hazardous Waste Act;
xxxx
(r) R.A. No. 8749, Clean Air Act;
xxxx
(y) Provisions in C.A. No. 141, x x x; and other existing laws that
relate to the conservation, development, preservation, protection and
utilization of the environment and natural resources.82 (Emphasis
supplied)
Notably, the aforesaid Rules are limited in scope. While, indeed, there are
allegations of violations of environmental laws in the petitions, these only
serve as collateral attacks that would support the other position of the
petitioners the protection of the rightto life, security and safety. Moreover, it
bears emphasis that the promulgation of the said Rules was specifically
intended to meet the following objectives:
SEC. 3. Objectives.The objectives of these Rules are:
(a) To protect and advance the constitutional right of the people to a
balanced and healthful ecology;
(b) To provide a simplified, speedy and inexpensive procedure for
the enforcement of environmental rights and duties recognized under
the Constitution, existing laws, rules and regulations, and
international agreements;
(c) To introduce and adopt innovations and best practices ensuring
the effective enforcement of remedies and redress for violation of
environmental laws; and
(d) To enable the courts to monitor and exact compliance with orders
and judgments in environmental cases.83
Surely, the instant petitions are not within the contemplation of these Rules.
Relative to the position of Petron, it failed to consider that these petitions are
already a sequel to G.R. No. 156052, and that there are some issues herein
raised that the remedies available at the level of the Sangguniang
Panlungsod could not address. Neither could the filing of an individual action
for each law violated be harmonized with the essence of a "plain, speedy,
and adequate" remedy.
From another perspective, Shell finds fault with the petitioners direct
recourse to this Court when, pursuant to Section 5, Article VIII of the
Constitution, the Supreme Court exercises only appellate jurisdiction over
cases involving the constitutionality or validity of an ordinance.84 Thus:
Section 5.The Supreme Court shall have the following powers:
xxxx
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
courtsin:
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. (Emphasis supplied)
To further support its position, it cites the case of Liga ng mga Barangay
National v. City Mayor of Manila,85 where the petitioners sought the
nullification of the mayors executive order and the councils ordinance
concerning certain functions of the petitioners that are vested in them by law.
There, the Court held:
Second, although the instant petition is styled as a petition for certiorari, in
essence, it seeks the declaration by this Court of the unconstitutionality or
illegality of the questioned ordinance and executive order. It, thus, partakes
of the nature of a petition for declaratory relief over which this Court has only
appellate, not original, jurisdiction.86 Section 5, Article VIII of the Constitution
provides: x x x
As such, this petition must necessary fail, as this Court does not have
original jurisdiction over a petition for declaratory relief even if only questions
of law are involved.87
Assuming that a petition for declaratory relief is the proper remedy, and that
the petitions should have been filed with the Regional Trial Court, we have,
time and again, resolved to treat such a petition as one for prohibition,
provided that the case has far-reaching implications and transcendental
issues that need to be resolved,88 as in these present petitions.
On a related issue, we initially found convincing the argument that the
petitions should have been filed with the Regional Trial Court, it having
concurrent jurisdiction with this Court over a special civil action for
prohibition, and original jurisdiction over petitions for declaratory relief.
However, as we have repeatedly said, the petitions at bar are of
transcendental importance warranting a relaxation of the doctrine of
hierarchy of courts.89 In the case of Jaworski v. PAGCOR,90 the Court
ratiocinated:
Granting arguendothat the present action cannot be properly treated as a
petition for prohibition, the transcendental importance of the issues involved
in this case warrants that weset aside the technical defects and take primary
jurisdiction over the petition at bar. x x x This is in accordance with the well-
entrenched principle that rules of procedure are not inflexible tools designed
to hinder or delay, but to facilitate and promote the administration of
justice.Their strict and rigid application, which would result in technicalities
that tend to frustrate, rather than promote substantial justice, must always be
eschewed. (Emphasis supplied)
persons aggrieved thereby
As to who may file a petition for certiorari, prohibition or mandamus, Petron
posits that petitioners are not among the "persons aggrieved" contemplated
under Sections 1 to 3 of Rule 65 of the Rules of Court.
Chevron argues that petitioners, whether as "citizens," taxpayers," or
legislators," lack the legal standing toassail the validity and constitutionality of
Ordinance No. 8187. It further claims that petitioners failed to show that they
have suffered any injury and/or threatened injury as a result of the act
complained of.91
Shell also points out that the petitions cannot be considered taxpayers suit,
for then, there should be a claim that public funds were illegally disbursed
and that petitioners have sufficient interest concerning the prevention of
illegal expenditure of public money.92 In G.R. No. 187916, Shell maintains
that the petitioners failed to show their personal interest in the case and/or to
establish that they may represent the general sentiments of the constituents
of the City of Manila so as to be treated as a class suit. Even the minors, it
argues, are not numerous and representative enough for the petition to be
treated as a class suit. Asto the city councilors who joined the petitioners in
assailing the validity of Ordinance No. 8187, Shell posits that they cannot
invoke the ruling in Prof. David v. Pres. Macapagal-Arroyo,93 where the
Court held that legislators may question the constitutionality of a statute, if
and when it infringes upon their prerogatives as legislators, because of the
absence of the allegation that the assailed ordinance indeed infringes upon
their prerogatives.
Former Mayor Lim submitted a similar position supported by a number of
cases on the concept of locus standi,94 the direct injury test,95 an outline of
the stringent requirements of legal standing when suing as a citizen,96 as a
taxpayer,97 as a legislator and in cases where class suits are filed in behalf
of all citizens.98
Their arguments are misplaced.
In G.R. No. 156052, we ruled that the petitioners in that case have a legal
right to seek the enforcement of Ordinance No. 8027 because the subject of
the petition concerns a public right, and they, as residents of Manila, have a
direct interest in the implementation of the ordinances of the city. Thus:
To support the assertion that petitioners have a clear legal right to the
enforcement of the ordinance, petitioner SJS states that it is a political party
registered with the Commission on Elections and has its offices in Manila. It
claims to have many members who are residents of Manila. The other
petitioners, Cabigao and Tumbokon, are allegedly residents of Manila.
We need not belabor this point. We have ruled in previous cases that when a
mandamus proceeding concerns a public right and its object is to compel a
public duty, the people who are interested in the execution of the laws are
regarded as the real parties in interest and they need not show any specific
interest. Besides, as residents of Manila, petitioners have a direct interest in
the enforcement of the citys ordinances.99 x x x (Citations omitted)
No different are herein petitioners who seek to prohibit the enforcement of
the assailed ordinance, and who deal with the same subject matter that
concerns a public right. Necessarily, the people who are interested in the
nullification of such an ordinance are themselves the real parties in interest,
for which reason, they are no longer required to show any specific interest
therein. Moreover, it is worth mentioning that SJS, now represented by SJS
Officer Alcantara, has been recognized by the Court in G.R. No. 156052 to
have legal standing to sue in connection with the same subject matter herein
considered. The rest of the petitioners are residents of Manila. Hence, all of
them have a direct interest in the prohibition proceedings against the
enforcement of the assailed ordinance.
In the case of Initiatives for Dialogue and Empowerment through Alternative
Legal Services, Inc. (IDEALS, INC.) v. Power Sector Assets and Liabilities
Management Corporation (PSALM),100 involving a petition for certiorari and
prohibition to permanently enjoin PSALM from selling the Angat Hydro-
Electric Power Plant (AHEPP) to Korea Water Resources Corporation (K-
Water), the Court ruled:
"Legal standing" or locus standihas 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, alleging more than a generalized grievance. x x x This Court,
however, has adopted a liberal attitude on the locus standi of a petitioner
where the petitioner is able to craft anissue of transcendental significance to
the people, as when the issues raised are of paramount importance to the
public. Thus, when the proceeding involves the assertion of a public right, the
mere fact that the petitioner is a citizen satisfies the requirement of personal
interest.
There can be no doubt that the matter of ensuring adequate water supply for
domestic use is one of paramount importance to the public. That the
continued availability of potable water in Metro Manila might be compromised
if PSALM proceeds with the privatization of the hydroelectric power plant in
the Angat Dam Complex confers upon petitioners such personal stake in the
resolution of legal issues in a petition to stop its implementation.101
(Emphasis supplied; citations omitted)
In like manner, the preservation of the life, security and safety of the people
is indisputably a right of utmost importance to the public. Certainly, the
petitioners, as residents of Manila, have the required personal interest to
seek relief from this Court to protect such right.
in excess of its or his jurisdiction,
or with grave abuse of discretion
amounting to lack or excess of jurisdiction
Petron takes issue with the alleged failure of the petitioners to establish the
facts with certainty that would show that the acts of the respondents fall
within the parameters of the grave abuse of discretion clause settled by
jurisprudence, to wit:
x x x "[G]rave abuse of discretion" means such capricious and whimsical
exercise of judgment as is equivalent to lack of jurisdiction. The abuse of
discretion must be grave as where the power is exercised in an arbitrary or
despotic manner by reason of passion or personal hostility and must be so
patent and gross asto amount to an evasion of positive duty or to a virtual
refusal to perform the duty enjoined by or to act all in contemplation of
law.102
It is pointless to discuss the matter at length in these instant cases of
transcendental importance in view of the Courts pronouncement, in
Magallona v. Ermita.103 There it held that the writs of certiorariand
prohibition are proper remedies to test the constitutionality of statutes,
notwithstanding the following defects:
In praying for the dismissal of the petition on preliminary grounds,
respondents seek a strict observance of the offices of the writs of certiorari
and prohibition, noting that the writs cannot issue absent any showing of
grave abuse of discretion in the exercise of judicial, quasi-judicial or
ministerial powers on the part of respondents and resulting prejudice on
the part of petitioners.
Respondents submission holds true in ordinary civil proceedings. When this
Court exercises its constitutional power of judicial review, however, we have,
by tradition, viewed the writs of certiorariand prohibition as proper remedial
vehicles to test the constitutionality of statutes, and indeed, of acts of
other branches of government. Issues of constitutional importx x x
carry such relevance in the life of this nation that the Court inevitably
finds itself constrained to take cognizance of the case and pass upon
the issues raised, noncompliance with the letter of procedural rules
notwithstanding. The statute sought to be reviewed here is one such
law.104 (Emphasis supplied; citations omitted)
Requisites of judicial review
For a valid exercise of the power of judicial review, the following requisites
shall concur: (1) the existence of a legal controversy; (2) legal standing to
sue of the party raising the constitutional question; (3) a plea that judicial
review be exercised at the earliest opportunity; and (4) the constitutional
question is the lis mota of the case.105
Only the first two requisites are put in issue in these cases.
On the matter of the existence of a legal controversy, we reject the
contention that the petitions consist of bare allegations based on
speculations, surmises, conjectures and hypothetical grounds.
The Court declared Ordinance No. 8027 valid and constitutional and ordered
its implementation. Withthe passing of the new ordinance containing the
contrary provisions, it cannot be any clearer that here lies an actual case or
controversy for judicial review. The allegation on this, alone, is sufficient for
the purpose.
The second requisite has already been exhaustively discussed.
Proof of identification required in the notarization
of the verification and certification against forum
shopping in G.R. No. 187916
At the bottom of the Verification and Certification against Forum Shopping of
the petition in G.R. No. 187916 is the statement of the notary public to the
effect that the affiant, in his presence and after presenting "an integrally
competent proof of identification with signature and photograph,"106 signed
the document under oath.
Citing Sec. 163 of the Local Government Code,107 which provides that an
individual acknowledging any document before a notary public shall present
his Community Tax Certificate (CTC), Chevron posits that the petitioners
failure to present his CTC rendered the petition fatally defective warranting
the outright dismissal of the petition.
We disagree.
The verification and certification against forum shopping are governed
specifically by Sections 4 and 5,Rule 7 of the Rules of Court.
Section 4 provides that a pleading, when required to be verified, shall be
treated as an unsigned pleading if it lacks a proper verification while Section
5 requires that the certification to be executed by the plaintiff or principal
party be under oath.
These sections, in turn, should be read together with Sections 6 and 12, Rule
2 of the 2004 Rules on Notarial Practice.
Section 6108 of the latter Rules, specifically, likewise provides that any
competent evidence of identity specified under Section 12 thereof may now
be presented before the notary public, to wit:
SEC. 12. Competent Evidence of Identity. - The phrase "competent evidence
of identity" refers to the identification of an individual based on:
(a) at least one current identification document issued by an official
agency bearing the photograph and signature of the individual, such
as but not limited to passport, drivers license, Professional
Regulations Commission ID, National Bureau of Investigation
clearance, police clearance, postal ID, voters ID, Barangay
certification, Government Service and Insurance System (GSIS) e-
card, Social Security System (SSS) card, Philhealth card, senior
citizen card, Overseas Workers Welfare Administration (OWWA) ID,
OFW ID, seamans book, alien certificate of registration/immigrant
certificate of registration, government office ID, certification from the
National Council for the Welfare of Disable Persons (NCWDP),
Department of Social Welfare and Development (DSWD)
certification; or
 (b) x x x.109
Forum shopping
Shell contends that the petitioners in G.R. No. 187836 violated the rule
against forum shopping allegedly because all the elements thereof are
present in relation to G.R. No. 156052, to wit:
1. "identity of parties, or at least such parties who represent the
same interests in both actions" According to Shell, the interest of
petitioner SJS in G.R. No. 156052 and the officers of SJS in G.R.
No. 187836 are clearly the same. Moreover, both actions implead
the incumbent mayor of the City of Manila as respondent. Both then
respondent Mayor Atienza in G.R. No. 156052 and respondent
former Mayor Lim in G.R. No. 187836 are sued in their capacity as
Manila mayor.
2. "identity of rights asserted and relief prayed for, the relief being
founded on the same fact(s)" Shell contends that, in both actions,
petitioners assert the same rights to health and to a balanced and
healthful ecology relative to the fate of the Pandacan terminal, and
seek essentially the same reliefs, that is, the removal of the oil
depots from the present site.
3. "the identity of the two preceding particulars is such that any
judgment rendered in the pending case, regardless of which party is
successful, would amount to res judicata in the other" Relative to
the filing of the Manifestation and Motion to: a) Stop the City Council
of Manila from further hearing the amending ordinance to Ordinance
No. 8027 x x x (Manifestation and Motion) and Very Urgent Motion to
Stop the Mayor of the City of Manila from Signing Draft Ordinance
No. 7177 [now Ordinance No. 8187] and to Cite Him for Contempt if
He Would Do So (Urgent Motion) both in G.R. No. 156052, Shell
points out the possibility that the Court would have rendered
conflicting rulings "on cases involving the same facts, parties, issues
and reliefs prayed for."110
We are not persuaded.
In Spouses Cruz v. Spouses Caraos,111 the Court expounded on the nature
of forum shopping. Thus:
Forum shopping is an act of a party, against whom an adverse judgment or
order has been rendered in one forum, of seeking and possibly getting a
favorable opinion in another forum, other than by appeal or special civil
action for certiorari. It may also be the institution of two or more actions or
proceedings grounded on the same cause on the supposition that one or the
other court would make a favorable disposition. The established rule is that
for forum shopping to exist, both actions must involve the same transactions,
same essential facts and circumstances and must raise identical causes of
actions, subject matter, and issues. x x x112 (Citations omitted) It bears to
stress that the present petitions were initially filed, not to secure a judgment
adverse to the first decision, but, precisely, to enforce the earlier ruling to
relocate the oil depots from the Pandacan area.
As to the matter of the denial of the petitioners Manifestation and Urgent
Motion in G.R. No. 156052, which wereboth incidental to the enforcement of
the decision favorable to them brought about by the intervening events after
the judgment had become final and executory, and which involve the same
Ordinance assailed in these petitions, we so hold that the filing of the instant
petitions is not barred by res judicata.
In the same case of Spouses Cruz v. Spouses Caraos involving the refiling of
a complaint, which had been earlier dismissed without qualification that the
dismissal was with prejudice, and which had not been decided on the merits,
the Court declared that such re-filing did not amount to forum shopping. It
ratiocinated:
It is not controverted that the allegations of the respective complaints in both
Civil Case No. 95-1387 and Civil Case No. 96-0225 are similarly worded, and
are identical in all relevant details, including typographical errors, except for
the additional allegations in support of respondents prayer for the issuance
of preliminary injunction in Civil Case No. 95-1387. It is similarly not disputed
that both actions involve the same transactions; same essential facts and
circumstances; and raise identical causes of actions, subject matter, and
issues.
xxxx
x x x The dismissal of Civil Case No. 95-1387 was without prejudice. Indeed,
the Order dated 20 November 1995, dismissing Civil Case No. 95-1387 was
an unqualified dismissal. More significantly, its dismissal was not based on
grounds under paragraphs (f), (h), and (i) of Section 1 of Rule 16 of the Rules
of Court, which dismissal shall bar the refiling of the same action or claim as
crystallized in Section 5 of Rule 16 thereof, thus:
SEC. 5. Effect of dismissal. Subject to the right of appeal, an order granting
a motion to dismiss based on paragraphs (f), (h), and (i) of section 1 hereof
shall bar the refiling of the same action or claim.
From the foregoing, it is clear that dismissals under paragraphs (f), (h), and
(i) of Section 1 of Rule 16 of the Rules of Court constitute res judicata, to wit:
(f) That the cause of action isbarred by a prior judgment or by the statute of
limitations;
xxxx
(h) That the claim or demand set forth in the plaintiffs pleading has been
paid, waived, abandoned, or otherwise extinguished;
(i) That the claim on which the action is founded is unenforceable under the
provisions of the statute of frauds.
Res judicata or bar by prior judgmentis a doctrine which holds that a matter
that has been adjudicated by a court of competent jurisdiction must be
deemed to have been finally and conclusively settled if it arises in any
subsequent litigation between the same parties and for the same cause. Res
judicata exists when the following elements are present: (a) the former
judgment must be final; (b) the court which rendered judgment had
jurisdiction over the parties and the subject matter; (3)it must be a judgment
on the merits; and (d) and there must be, between the first and second
actions, identity ofparties, subject matter, and cause of action.113 (Emphasis
supplied; citations omitted)
Here, it should be noted that this Court denied the said Manifestation and
Urgent Motion, and refused to act on the succeeding pleadings, for being
moot.114 Clearly, the merits of the motion were not considered by the Court.
The following disquisition of the Court in Spouses Cruz v. Spouses Caraosis
further enlightening:
The judgment of dismissal in Civil Case No. 95-1387 does not constitute res
judicata to sufficiently bar the refiling thereof in Civil Case No. 96-0225. As
earlier underscored, the dismissal was one without prejudice. Verily, it was
not a judgment on the merits. It bears reiterating that a judgment on the
merits is one rendered after a determination of which party is right, as
distinguished from a judgment rendered upon some preliminary or formal or
merely technical point. The dismissal of the case without prejudice indicates
the absence of a decision on the merits and leaves the parties free to litigate
the matter in a subsequent action asthough the dismissed action had not
been commenced.115 (Emphasis supplied; citations omitted)
Considering that there is definitely no forum shopping in the instant cases,
we need not discuss in detail the elements of forum shopping.
II
The Local Government Code of 1991 expressly provides that the
Sangguniang Panlungsod is vested with the power to "reclassify land within
the jurisdiction of the city"116 subject to the pertinent provisions of the Code.
It is also settled that an ordinance may be modified or repealed by another
ordinance.117 These have been properly applied in G.R. No. 156052, where
the Court upheld the position of the Sangguniang Panlungsod to reclassify
the land subject of the Ordinance,118 and declared that the mayor has the
duty to enforce Ordinance No. 8027, provided that it has not been repealed
by the Sangguniang Panlungsod or otherwise annulled by the courts.119 In
the same case, the Court also used the principle that the Sanguniang
Panlungsod is in the best position to determine the needs of its
Constituents120 that the removal of the oil depots from the Pandacan area
is necessary "to protect the residents of Manila from catastrophic devastation
in case of a terrorist attack on the Pandacan Terminals."121
Do all these principles equally apply to the cases at bar involving the same
subject matter to justify the contrary provisions of the assailed Ordinance?
We answer in the negative.
We summarize the position of the Sangguniang Panlungsodon the matter
subject of these petitions. In 2001, the Sanggunian found the relocation of
the Pandacan oil depots necessary. Hence, the enactment of Ordinance No.
8027.
In 2009, when the composition of the Sanggunian had already changed,
Ordinance No. 8187 was passed in favor of the retention of the oil depots. In
2012, again when some of the previous members were no longer re-elected,
but with the Vice-Mayor still holding the same seat, and pending the
resolution of these petitions, Ordinance No. 8283 was enacted to give the oil
depots until the end of January 2016 within which to transfer to another site.
Former Mayor Lim stood his groundand vetoed the last ordinance.
In its Comment, the 7th Council (2007-2010) alleged that the assailed
Ordinance was enacted to alleviate the economic condition of its
constituents.122
Expressing the same position, former Mayor Lim even went to the extent of
detailing the steps123 he took prior to the signing of the Ordinance, if only to
show his honest intention to make the right decision.
The fact remains, however, that notwithstanding that the conditions with
respect to the operations of the oil depots existing prior to the enactment of
Ordinance No. 8027 do not substantially differ to this day, as would later be
discussed, the position of the Sangguniang Panlungsod on the matter has
thrice changed, largely depending on the new composition of the council
and/or political affiliations. The foregoing, thus, shows that its determination
of the "general welfare" of the city does not after all gear towards the
protection of the people in its true sense and meaning, but is, one way or
another, dependent on the personal preference of the members who sit in
the council as to which particular sector among its constituents it wishes to
favor.
Now that the City of Manila, through the mayor and the city councilors, has
changed its view on the matter, favoring the citys economic related benefits,
through the continued stay of the oil terminals, over the protection of the very
lives and safety of its constituents, it is imperative for this Court to make a
final determination on the basis of the facts on the table as to which specific
right of the inhabitants of Manila should prevail. For, in this present
controversy, history reveals that there is truly no such thing as "the will of
Manila" insofar as the general welfare of the people is concerned.
If in sacrilege, in free translation of Angara124 by Justice Laurel, we say
when the judiciary mediates we do notin reality nullify or invalidate an act of
the Manila Sangguniang Panlungsod, but only asserts the solemn and
sacred obligation assigned to the Court by the Constitution to determine
conflicting claims of authority under the Constitution and to establish for the
parties in an actual controversy the rights which that instrument secures and
guarantees to them.
III
The measures taken by the intervenors to lend support to their position that
Manila is now safe despite the presence of the oil terminals remain
ineffective. These have not completely removed the threat to the lives of the
in habitants of Manila.
In G.R. No. 156052, the validity and constitutionality of Ordinance No. 8027
was declared as a guarantee for the protection of the constitutional right to
life of the residents of Manila. There, the Court said that the enactment of the
said ordinance was a valid exercise of police power with the concurrence of
the two requisites: a lawful subject "to safeguard the rights to life, security
and safety of all the inhabitants of Manila;"125 and a lawful method the
enactment of Ordinance No. 8027 reclassifying the land use from industrial to
commercial, which effectively ends the continued stay of the oil depots in
Pandacan.126
In the present petitions, the respondents and the oil companies plead that the
Pandacan Terminal has never been one of the targets of terrorist attacks;127
that the petitions were based on unfounded fears and mere conjectures;128
and that the possibility that it would be picked by the terrorists is nil given the
security measures installed thereat.129
The intervenors went on to identify the measures taken to ensure the safety
of the people even with the presence of the Pandacan Terminals. Thus:
1. Chevron claims that it, together with Shell and Petron, continues
to enhance the safety and security features of the terminals. They
likewise adopt fire and product spill prevention measures in
accordance with the local standards set by the Bureau of Fire
Protection, among others, and with the international standards of the
American Petroleum Industry ("API") and the National Fire
Prevention and Safety Association ("NFPSA"); that since 1914, the
oil depots had not experienced "any incident beyond the ordinary
risks and expectations"130 of the residents of Manila; and that it
received a passing grade on the safety measures they installed in
the facilities from the representatives of the City of Manila who
conducted an ocular inspection on 22 May 2009; and
2. Referring to the old MOU entered into between the City of Manila
and the DOE, on the one hand, and the oil companies, on the other,
where the parties thereto conceded and acknowledged that the
scale-down option for the Pandacan Terminal operations is the best
alternative to the relocation of the terminals, Shell enumeratesthe
steps taken to scale down its operations.
As to the number of main fuel tanks, the entire Pandacan Terminal has
already decommissioned twenty-eight out of sixty-four tanks. Speaking for
Shell alone, its LPG Spheres, which it claims is the only product that may
cause explosion, was part of those decommissioned, thereby allegedly
removing the danger of explosion. Safety buffer zones and linear/green parks
were likewise created to separate the terminal from the nearest residential
area. Shells portion of the oil depot is likewise allegedly equipped with the
latest technology to ensure air-quality control and waterquality control, and to
prevent and cope with possible oil spills with a crisis management plan in
place in the event that an oil spill occurs. Finally, Shell claims that the
recommendations of EQE International in its Quantitative Risk Assessment
(QRA) study, which it says is one of the leading independent risk assessment
providers in the world and largest risk management consultancy, were
sufficiently complied with; and that, on its own initiative, it adopted additional
measures for the purpose, for which reason, "the individual risk level
resulting from any incident occurring from the Pandacan Terminal, per the
QRA study, is twenty (20) times lower compared to the individual risk level of
an average working or domestic environment."131
We are not persuaded.
The issue of whether or not the Pandacan Terminal is not a likely target of
terrorist attacks has already been passed upon in G. R. No. 156052. Based
on the assessment of the Committee on Housing, Resettlement and Urban
Development of the City of Manila and the then position of the Sangguniang
Panlungsod,132 the Court was convinced that the threat of terrorism is
imminent. It remains so convinced.
Even assuming that the respondents and intervenors were correct, the very
nature of the depots where millions of liters of highly flammable and highly
volatile products, regardless of whether ornot the composition may cause
explosions, has no place in a densely populated area. Surely, any untoward
incident in the oil depots, beit related to terrorism of whatever origin or
otherwise, would definitely cause not only destruction to properties within and
among the neighboring communities but certainly mass deaths and injuries.
With regard to the scaling down of the operations in the Pandacan Terminals,
which the oil companies continue to insist to have been validated and
recognized by the MOU, the Court,in G.R. No. 156052, has already put this
issue to rest. It specifically declared that even assuming that the terms of the
MOU and Ordinance No. 8027 were inconsistent, the resolutions ratifying the
MOU gave it full force and effect only until 30 April 2003.133
The steps taken by the oil companies, therefore, remain insufficient to
convince the Court that the dangers posed by the presence of the terminals
in a thickly populated area have already been completely removed.
For, given that the threat sought to be prevented may strike at one point or
another, no matter how remote it is as perceived by one or some, we cannot
allow the right to life to bedependent on the unlikelihood of an event.
Statistics and theories of probability have no place in situations where the
very life of not just an individual but of residents of big neighborhoods is at
stake.
IV
It is the removal of the danger to life not the mere subdual of risk of
catastrophe, that we saw in and made us favor Ordinance No. 8027. That
reason, unaffected by Ordinance No. 8187, compels the affirmance of our
Decision in G.R. No. 156052.
In striking down the contrary provisions of the assailed Ordinance relative to
the continued stay of the oil depots, we follow the same line of reasoning
used in G.R. No. 156052, to wit: Ordinance No. 8027 was enacted "for the
purpose of promoting sound urban planning, ensuring health, public safety
and general welfare" of the residents of Manila. The Sanggunian was
impelled to take measures to protect the residents of Manila from
catastrophic devastation in case of a terrorist attack on the Pandacan
Terminals. Towards this objective, the Sanggunian reclassified the area
defined in the ordinance from industrial to commercial.
The following facts were found by the Committee on Housing, Resettlement
and Urban Development of the City of Manila which recommended the
approval of the ordinance:
(1) the depot facilities contained 313.5 million liters of highly
flammable and highly volatile products which include petroleum gas,
liquefied petroleum gas, aviation fuel, diesel, gasoline, kerosene and
fuel oil among others;
(2) the depot is open to attack through land, water or air;
(3) it is situated in a densely populated place and near Malacaang
Palace; and
(4) in case of an explosion or conflagration in the depot, the fire
could spread to the neighboring communities.
The ordinance was intended to safeguard the rights to life, security and
safety of all the inhabitants of Manila and not just of a particular class. The
depot is perceived, rightly or wrongly, as a representation of western
interests which means that it is a terrorist target. As long as it (sic) there is
such a target in their midst, the residents of Manila are not safe. It therefore
became necessary to remove these terminals to dissipate the threat.
According to respondent:
Such a public need became apparent after the 9/11 incident which showed
that what was perceived to be impossible to happen, to the most powerful
country in the world at that, is actually possible. The destruction of property
and the loss of thousands of lives on that fateful day became the impetus for
a public need. Inthe aftermath of the 9/11 tragedy, the threats of terrorism
continued [such] that it became imperative for governments to take measures
to combat their effects.
xxxx
Both law and jurisprudence support the constitutionality and validity of
Ordinance No. 8027. Without a doubt, there are no impediments to its
enforcement and implementation. Any delay is unfair to the inhabitants of the
City of Manila and its leaders who have categorically expressed their desire
for the relocation of the terminals. Their power to chart and control their own
destiny and preserve their lives and safety should not be curtailed by the
intervenors warnings of doomsday scenarios and threats of economic
disorder if the ordinance is enforced.134
The same best interest of the public guides the present decision. The
Pandacan oil depot remains a terrorist target even if the contents have been
lessened. In the absence of any convincing reason to persuade this Court
that the life, security and safety of the inhabitants of Manila are no longer put
at risk by the presence of the oil depots, we hold that Ordinance No. 8187 in
relation to the Pandacan Terminals is invalid and unconstitutional.
There is, therefore, no need to resolve the rest of the issues.
Neither is it necessary to discuss at length the test of police power against
the assailed ordinance. Suffice it to state that the objective adopted by the
Sangguniang Panlungsod to promote the constituents general welfare in
terms of economic benefits cannot override the very basic rights to life,
security and safety of the people.
In. G.R. No. 156052, the Court explained:
Essentially, the oil companies are fighting for their right to property. They
allege that they stand tolose billions of pesos if forced to relocate. However,
based on the hierarchy of constitutionally protected rights, the right to life
enjoys precedence over the right to property. The reason is obvious: life is
irreplaceable, property is not. When the state or LGUs exercise of police
power clashes with a few individuals right to property, the former should
prevail.135
We thus conclude with the very final words in G.R. No. 156052:
On Wednesday, January 23, 2008, a defective tanker containing 2,000 liters
of gasoline and 14,000 liters of diesel exploded in the middle of the street a
short distance from the exit gate of the Pandacan Terminals, causing death,
extensive damage and a frightening conflagration in the vicinity of the
incident. Need we say anthing about what will happen if it is the estimated
162 to 211 million liters [or whatever is left of the 26 tanks] of petroleum
products in the terminal complex will blow up?136
V was heard from any of the parties until the present petitions as to the status
As in the prequel case, we note that as early as October 2001, the oil
companies signed a MOA with the DOE obliging themselves to:
... undertake a comprehensive and comparative study ... [which] shall include
the preparation ofa Master Plan, whose aim is to determine the scope and
timing of the feasible location of the Pandacan oil terminals and all
associated facilities and infrastructure including government support
essential for the relocation such as the necessary transportation
infrastructure, land and right of way acquisition, resettlement of displaced
residents and environmental and social acceptability which shall be based on
mutual benefit of the Parties and the public.
such that:
Now that they are being compelled to discontinue their operations in the
Pandacan Terminals, they cannot feign unreadiness considering that they
had years to prepare for this eventuality.137
On the matter of the details of the relocation, the Court gave the oil
companies the following time frames for compliance:
To ensure the orderly transfer, movement and relocation of assets and
personnel, the intervenors Chevron Philippines Inc., Petron Corporation and
Pilipinas Shell Petroleum Corporation shall, within a nonextendible period of
ninety (90) days, submit to the Regional Trial Court of Manila, Branch 39, the
comprehensive plan and relocation schedule which have allegedly been
prepared. The presiding judge of Manila RTC, Branch 39 will monitor the
strict enforcement of this resolution.138
The periods were given in the Decision in G.R. No. 156052 which became
final on 23 April 2009. Five years have passed, since then. The years of non-
compliance may be excused by the swing of local legislative leads. We now
stay the sway and begin a final count.
A comprehensive and well-coordinated plan within a specific timeframe shall,
therefore, be observed in the relocation of the Pandacan Terminals. The oil
companies shall begiven a fresh non-extendible period of forty-five (45) days
from notice within which to submit to the Regional Trial Court, Branch 39,
Manila an updated comprehensive plan and relocation schedule. The
relocation, inturn, shall be completed not later than six months from the date
of their submission. Finally, let it be underscored that after the last
Manifestation filed by Shell informing this Court that respondent former
Mayor Lim vetoed Ordinance No. 8283 for the second time, and was
anticipating its referral to the President for the latters consideration, nothing
of the approval or disapproval of the said ordinance. As it is, the fate of the
Pandacan Terminals remains dependent on this final disposition of these
cases.
VI
On the matter of the failure of Atty. Gempis to immediately comply with the
directives of this Court to file the Memorandum for the Vice-Mayor and the
city councilors who voted in favor of the assailed Ordinance, the records do
not bear proof that he received a copy of any of the resolutions pertaining to
the filing of the Memorandum.
A narration of the events from his end would show, however, that he was
aware of the directive issued in 2009 when he stated that "when the City
Legal Officer filed its Memorandum dated 8 February 2010, [he] thought the
filing of a Memorandum for the other respondent city officials could be
dispensed with."139 There was also a categorical admission that he received
the later Resolution of 31 May 2011 but that he could not prepare a
Memorandum defending the position of respondents vice-mayor and the city
councilors who voted in favor of Ordinance No. 8187 in view of the ongoing
drafting of Ordinance No. 8283, which would change the position of the
Sanggunian, if subsequently approved.
The reasons he submitted are notimpressed with merit.
That he was not officially designated as the counsel for the vicemayor and
the city councilors is beside the point. As an officer of the court, he cannot
feign ignorance of the fact that"a resolution of this Court is not a mere
request but an order which should be complied with promptly and
completely."140 As early as 2009, he should have immediately responded
and filed a Manifestation and therein set forth his reasons why he cannot
represent the vice-mayor and the city councilors. And, even assuming that
the 31 May 2011 Resolution was the first directive he personally received, he
had no valid excuse for disregarding the same. Worse, the Court had to
issue a show cause order before he finally heeded.
Atty. Gempis should "strive harderto live up to his duties of observing and
maintaining the respect dueto the courts, respect for law and for legal
processes and of upholding the integrity and dignity of the legal profession in
order to perform his responsibilities asa lawyer effectively."141
In Sibulo v. Ilagan,142 which involves a lawyers repeated failure to comply
with the directives of the Court, the penalty recommended by the Integrated
Bar of the Philippines was reduced from suspension to reprimand and a
warning. The Court ratiocinated:
Considering, however, that respondent was absolved of the administrative
charge against him and is being taken to task for his intransigence and lack
of respect, the Court finds that the penalty of suspension would not be
warranted under the circumstances.
xxxx
To the Courts mind, a reprimand and a warning are sufficient sanctions for
respondents disrespectful actuations directed against the Court and the IBP.
The imposition of these sanctions in the present case would be more
consistent with the avowed purpose of disciplinary case, which is "not so
much to punish the individual attorney as to protect the dispensation of
justice by sheltering the judiciary and the public from the misconduct or
inefficiency of officers of the court."143
We consider the participation of Atty. Gempis in this case and opt to be
lenient even as we reiterate the objective of protecting the dispensation of
justice. We deem it sufficient to remind Atty. Gempis to be more mindful of
his duty as a lawyer towards the Court.
WHEREFORE, in light of all the foregoing, Ordinance No. 8187 is hereby
declared UNCONSTITUTIONAL and INVALID with respect to the continued
stay of the Pandacan Oil Terminals.
The incumbent mayor of the City of Manila is hereby ordered to CEASE and
DESIST from enforcing Ordinance No. 8187.1wphi1 In coordination with the
appropriate government agencies and the parties herein involved, he is
further ordered to oversee the relocation and transfer of the oil terminals out
of the Pandacan area.
As likewise required in G.R. No. 156052, the intervenors Chevron
Philippines, Inc., Pilipinas Shell Petroleum Corporation, and Petron
Corporation shall, within a non-extendible period of forty-five (45) days,
submit to the Regional Trial Court, Branch 39, Manila an updated
comprehensive plan and relocation schedule, which relocation shall be
completed not later than six (6) months from the date the required
documents are submitted. The presiding judge of Branch 39 shall monitor the
strict enforcement of this Decision.
For failure to observe the respect due to the Court, Atty. Luch R. Gempis, Jr.,
Secretary of the Sangguniang Panlungsod, is REMINDED of his duties
towards the Court and WARNED that a repetition of an act similar to that
here committed shall be dealt with more severely.
SO ORDERED.
G.R. No. 156052 February 13, 2008
SOCIAL JUSTICE SOCIETY (SJS), VLADIMIR ALARIQUE T. CABIGAO
and BONIFACIO S. TUMBOKON, petitioners,
vs.
HON. JOSE L. ATIENZA, JR., in his capacity as Mayor of the City of
Manila, respondent.
x----------------------x
CHEVRON PHILIPPINES INC., PETRON CORPORATION and PILIPINAS
SHELL PETROLEUM CORPORATION, movants-intervenors.
x----------------------x
DEPARTMENT OF ENERGY, movant-intervenor.
RESOLUTION
CORONA, J.:
After we promulgated our decision in this case on March 7, 2007, Chevron
Philippines Inc. (Chevron), Petron Corporation (Petron) and Pilipinas Shell
Petroleum Corporation (Shell) (collectively, the oil companies) and the
Republic of the Philippines, represented by the Department of Energy (DOE),
filed their respective motions for leave to intervene and for reconsideration of
the decision.
Chevron1 is engaged in the business of importing, distributing and marketing
of petroleum products in the Philippines while Shell and Petron are engaged
in the business of manufacturing, refining and likewise importing, distributing
and marketing of petroleum products in the Philippines. 2 The DOE is a
governmental agency created under Republic Act (RA) No. 7638 3 and tasked
to prepare, integrate, coordinate, supervise and control all plans, programs,
projects and activities of the government relative to energy exploration,
development, utilization, distribution and conservation.4
The facts are restated briefly as follows:
Petitioners Social Justice Society, Vladimir Alarique T. Cabigao and
Bonifacio S. Tumbokon, in an original petition for mandamus under Rule 65
of the Rules of Court, sought to compel respondent Hon. Jose L. Atienza, Jr.,
then mayor of the City of Manila, to enforce Ordinance No. 8027. This
ordinance was enacted by the Sangguniang Panlungsod of Manila on
November 20, 2001,5 approved by respondent Mayor on November 28,
2001,6 and became effective on December 28, 2001 after publication.7
Sections 1 and 3 thereof state:
SECTION 1. For the purpose of promoting sound urban planning and
ensuring health, public safety, and general welfare of the residents of
Pandacan and Sta. Ana as well as its adjoining areas, the land use
of [those] portions of land bounded by the Pasig River in the north,
PNR Railroad Track in the east, Beata St. in the south, Palumpong
St. in the southwest, and Estero de Pandacan in the west[,] PNR
Railroad in the northwest area, Estero de Pandacan in the
[n]ortheast, Pasig River in the southeast and Dr. M.L. Carreon in the
southwest. The area of Punta, Sta. Ana bounded by the Pasig River,
Marcelino Obrero St., Mayo 28 St., and F. Manalo Street, are hereby
reclassified from Industrial II to Commercial I.
xxx xxx xxx
SEC. 3. Owners or operators of industries and other businesses, the
operation of which are no longer permitted under Section 1 hereof,
are hereby given a period of six (6) months from the date of
effectivity of this Ordinance within which to cease and desist from the
operation of businesses which are hereby in consequence,
disallowed.
Ordinance No. 8027 reclassified the area described therein from industrial to
commercial and directed the owners and operators of businesses disallowed
under the reclassification to cease and desist from operating their businesses
within six months from the date of effectivity of the ordinance. Among the
businesses situated in the area are the so-called "Pandacan Terminals" of
the oil companies.
On June 26, 2002, the City of Manila and the Department of Energy (DOE)
entered into a memorandum of understanding (MOU)8 with the oil
companies. They agreed that "the scaling down of the Pandacan Terminals
[was] the most viable and practicable option." The Sangguniang Panlungsod
ratified the MOU in Resolution No. 97.9 In the same resolution, the
Sanggunian declared that the MOU was effective only for a period of six
months starting July 25, 2002.10 Thereafter, on January 30, 2003, the
Sanggunian adopted Resolution No. 1311 extending the validity of Resolution
No. 97 to April 30, 2003 and authorizing the mayor of Manila to issue special
business permits to the oil companies.12
This was the factual backdrop presented to the Court which became the
basis of our March 7, 2007 decision. We ruled that respondent had the
ministerial duty under the Local Government Code (LGC) to "enforce all laws
and ordinances relative to the governance of the city,"13 including Ordinance
No. 8027. We also held that we need not resolve the issue of whether the
MOU entered into by respondent with the oil companies and the subsequent
resolutions passed by the Sanggunian could amend or repeal Ordinance No.
8027 since the resolutions which ratified the MOU and made it binding on the
City of Manila expressly gave it full force and effect only until April 30, 2003.
We concluded that there was nothing that legally hindered respondent from
enforcing Ordinance No. 8027.
After we rendered our decision on March 7, 2007, the oil companies and
DOE sought to intervene and filed motions for reconsideration in intervention
on March 12, 2007 and March 21, 2007 respectively. On April 11, 2007, we
conducted the oral arguments in Baguio City to hear petitioners, respondent
and movants-intervenors oil companies and DOE.
The oil companies called our attention to the fact that on April 25, 2003,
Chevron had filed a complaint against respondent and the City of Manila in
the Regional Trial Court (RTC) of Manila, Branch 39, for the annulment of
Ordinance No. 8027 with application for writs of preliminary prohibitory
injunction and preliminary mandatory injunction.14 The case was docketed as
civil case no. 03-106377. On the same day, Shell filed a petition for
prohibition and mandamus likewise assailing the validity of Ordinance No.
8027 and with application for writs of preliminary prohibitory injunction and
preliminary mandatory injunction.15 This was docketed as civil case no. 03-
106380. Later on, these two cases were consolidated and the RTC of Manila,
Branch 39 issued an order dated May 19, 2003 granting the applications for
writs of preliminary prohibitory injunction and preliminary mandatory
injunction:
WHEREFORE, upon the filing of a total bond of TWO MILLION (Php
2,000,000.00) PESOS, let a Writ of Preliminary Prohibitory Injunction
be issued ordering [respondent] and the City of Manila, their officers,
agents, representatives, successors, and any other persons
assisting or acting in their behalf, during the pendency of the case, to
REFRAIN from taking steps to enforce Ordinance No. 8027, and let
a Writ of Preliminary Mandatory Injunction be issued ordering
[respondent] to issue [Chevron and Shell] the necessary Business
Permits to operate at the Pandacan Terminal.16
Petron likewise filed its own petition in the RTC of Manila, Branch 42, also
attacking the validity of Ordinance No. 8027 with prayer for the issuance of a
writ of preliminary injunction and/or temporary restraining order (TRO). This
was docketed as civil case no. 03-106379. In an order dated August 4, 2004,
the RTC enjoined the parties to maintain the status quo.17
Thereafter, in 2006, the city council of Manila enacted Ordinance No. 8119,
also known as the Manila Comprehensive Land Use Plan and Zoning
Ordinance of 2006.18 This was approved by respondent on June 16, 2006.19
Aggrieved anew, Chevron and Shell filed a complaint in the RTC of Manila,
Branch 20, asking for the nullification of Ordinance No. 8119.20 This was
docketed as civil case no. 06-115334. Petron filed its own complaint on the
same causes of action in the RTC of Manila, Branch 41.21 This was docketed
as civil case no. 07-116700.22 The court issued a TRO in favor of Petron,
enjoining the City of Manila and respondent from enforcing Ordinance No.
8119.23
Meanwhile, in civil case no. 03-106379, the parties filed a joint motion to
withdraw complaint and counterclaim on February 20, 2007.24 In an order
dated April 23, 2007, the joint motion was granted and all the claims and
counterclaims of the parties were withdrawn.25
Given these additional pieces of information, the following were submitted as
issues for our resolution:
1. whether movants-intervenors should be allowed to intervene in
this case;26
2. whether the following are impediments to the execution of our
March 7, 2007 decision:
(a) Ordinance No. 8119, the enactment and existence of
which were not previously brought by the parties to the
attention of the Court and
(b) writs of preliminary prohibitory injunction and preliminary
mandatory injunction and status quo order issued by the
RTC of Manila, Branches 39 and 42 and
3. whether the implementation of Ordinance No. 8027 will unduly
encroach upon the DOEs powers and functions involving energy
resources.
During the oral arguments, the parties submitted to this Courts power to rule
on the constitutionality and validity of Ordinance No. 8027 despite the
pendency of consolidated cases involving this issue in the RTC.27 The
importance of settling this controversy as fully and as expeditiously as
possible was emphasized, considering its impact on public interest. Thus, we
will also dispose of this issue here. The parties were after all given ample
opportunity to present and argue their respective positions. By so doing, we
will do away with the delays concomitant with litigation and completely
adjudicate an issue which will most likely reach us anyway as the final arbiter
of all legal disputes.
Before we resolve these issues, a brief review of the history of the Pandacan
Terminals is called for to put our discussion in the proper context.
History Of The Pandacan Oil Terminals
Pandacan (one of the districts of the City of Manila) is situated along the
banks of the Pasig river. At the turn of the twentieth century, Pandacan was
unofficially designated as the industrial center of Manila. The area, then
largely uninhabited, was ideal for various emerging industries as the nearby
river facilitated the transportation of goods and products. In the 1920s, it was
classified as an industrial zone.28 Among its early industrial settlers were the
oil companies. Shell established its installation there on January 30, 1914.29
Caltex (now Chevron) followed suit in 1917 when the company began
marketing its products in the country.30 In 1922, it built a warehouse depot
which was later converted into a key distribution terminal.31 The corporate
presence in the Philippines of Esso (Petrons predecessor) became more
keenly felt when it won a concession to build and operate a refinery in
Bataan in 1957.32 It then went on to operate a state-of-the-art lube oil
blending plant in the Pandacan Terminals where it manufactures lubes and
greases.33
On December 8, 1941, the Second World War reached the shores of the
Philippine Islands. Although Manila was declared an open city, the
Americans had no interest in welcoming the Japanese. In fact, in their
zealous attempt to fend off the Japanese Imperial Army, the United States
Army took control of the Pandacan Terminals and hastily made plans to
destroy the storage facilities to deprive the advancing Japanese Army of a
valuable logistics weapon.34 The U.S. Army burned unused petroleum,
causing a frightening conflagration. Historian Nick Joaquin recounted the
events as follows:
After the USAFFE evacuated the City late in December 1941, all
army fuel storage dumps were set on fire. The flames spread,
enveloping the City in smoke, setting even the rivers ablaze,
endangering bridges and all riverside buildings. For one week
longer, the "open city" blazeda cloud of smoke by day, a pillar of
fire by night.35
The fire consequently destroyed the Pandacan Terminals and rendered its
network of depots and service stations inoperative. 36
After the war, the oil depots were reconstructed. Pandacan changed as
Manila rebuilt itself. The three major oil companies resumed the operation of
their depots.37 But the district was no longer a sparsely populated industrial
zone; it had evolved into a bustling, hodgepodge community. Today,
Pandacan has become a densely populated area inhabited by about 84,000
people, majority of whom are urban poor who call it home.38 Aside from
numerous industrial installations, there are also small businesses, churches,
restaurants, schools, daycare centers and residences situated there. 39
Malacaang Palace, the official residence of the President of the Philippines
and the seat of governmental power, is just two kilometers away. 40 There is a
private school near the Petron depot. Along the walls of the Shell facility are
shanties of informal settlers.41 More than 15,000 students are enrolled in
elementary and high schools situated near these facilities.42 A university with
a student population of about 25,000 is located directly across the depot on
the banks of the Pasig river.43
The 36-hectare Pandacan Terminals house the oil companies distribution
terminals and depot facilities.44 The refineries of Chevron and Shell in
Tabangao and Bauan, both in Batangas, respectively, are connected to the
Pandacan Terminals through a 114-kilometer45 underground pipeline
system.46 Petrons refinery in Limay, Bataan, on the other hand, also services
the depot.47 The terminals store fuel and other petroleum products and
supply 95% of the fuel requirements of Metro Manila,48 50% of Luzons
consumption and 35% nationwide.49 Fuel can also be transported through
barges along the Pasig river or tank trucks via the South Luzon Expressway.
We now discuss the first issue: whether movants-intervenors should be
allowed to intervene in this case.
Intervention Of The Oil Companies And The DOE Should Be Allowed In
The Interest of Justice
Intervention is a remedy by which a third party, not originally impleaded in the
proceedings, becomes a litigant therein to enable him, her or it to protect or
preserve a right or interest which may be affected by such proceedings.50
The pertinent rules are Sections 1 and 2, Rule 19 of the Rules of Court:
SEC. 1. Who may intervene. A person who has a legal interest in
the matter in litigation, or in the success of either of the parties, or an
interest against both, or is so situated as to be adversely affected by
a distribution or other disposition of property in the custody of the
court or of an officer thereof may, with leave of court, be allowed to
intervene in the action. The court shall consider whether or not the
intervention will unduly delay or prejudice the adjudication of the
 rights of the original parties, and whether or not the intervenors
rights may be fully protected in a separate proceeding.
SEC. 2. Time to intervene. The motion to intervene may be filed at
any time before rendition of judgment by the trial court. A copy of the
pleading-in-intervention shall be attached to the motion and served
on the original parties.
Thus, the following are the requisites for intervention of a non-party:
(1) Legal interest
(a) in the matter in controversy; or
(b) in the success of either of the parties; or
I against both parties; or
(d) person is so situated as to be adversely affected by a
distribution or other disposition of property in the custody of
the court or of an officer thereof;
(2) Intervention will not unduly delay or prejudice the adjudication of
rights of original parties;
(3) Intervenors rights may not be fully protected in a separate
proceeding51 and
(g)The motion to intervene may be filed at any time before rendition
of judgment by the trial court.
For both the oil companies and DOE, the last requirement is definitely
absent. As a rule, intervention is allowed "before rendition of judgment" as
Section 2, Rule 19 expressly provides. Both filed their separate motions after
our decision was promulgated. In Republic of the Philippines v. Gingoyon,52 a
recently decided case which was also an original action filed in this Court, we
declared that the appropriate time to file the motions-in-intervention was
before and not after resolution of the case.53
The Court, however, has recognized exceptions to Section 2, Rule 19 in the
interest of substantial justice:
The rule on intervention, like all other rules of procedure, is intended
to make the powers of the Court fully and completely available for
justice. It is aimed to facilitate a comprehensive adjudication of rival
claims overriding technicalities on the timeliness of the filing
thereof.54
The oil companies assert that they have a legal interest in this case because
the implementation of Ordinance No. 8027 will directly affect their business
and property rights.55
[T]he interest which entitles a person to intervene in a suit between
other parties must be in the matter in litigation and of such direct and
immediate character that the intervenor will either gain or lose by
direct legal operation and effect of the judgment. Otherwise, if
persons not parties to the action were allowed to intervene,
proceedings would become unnecessarily complicated, expensive
and interminable. And this would be against the policy of the law.
The words "an interest in the subject" means a direct interest in the
cause of action as pleaded, one that would put the intervenor in a
legal position to litigate a fact alleged in the complaint without the
establishment of which plaintiff could not recover.56
We agree that the oil companies have a direct and immediate interest in the
implementation of Ordinance No. 8027. Their claim is that they will need to
spend billions of pesos if they are compelled to relocate their oil depots out of
Manila. Considering that they admitted knowing about this case from the time
of its filing on December 4, 2002, they should have intervened long before
our March 7, 2007 decision to protect their interests. But they did not.57
Neither did they offer any worthy explanation to justify their late intervention.
Be that as it may, although their motion for intervention was not filed on time,
we will allow it because they raised and presented novel issues and
arguments that were not considered by the Court in its March 7, 2007
decision. After all, the allowance or disallowance of a motion to intervene is
addressed to the sound discretion of the court before which the case is
pending.58 Considering the compelling reasons favoring intervention, we do
not think that this will unduly delay or prejudice the adjudication of rights of
the original parties. In fact, it will be expedited since their intervention will
enable us to rule on the constitutionality of Ordinance No. 8027 instead of
waiting for the RTCs decision.
The DOE, on the other hand, alleges that its interest in this case is also direct
and immediate as Ordinance No. 8027 encroaches upon its exclusive and
national authority over matters affecting the oil industry. It seeks to intervene
in order to represent the interests of the members of the public who stand to
suffer if the Pandacan Terminals operations are discontinued. We will tackle
the issue of the alleged encroachment into DOEs domain later on. Suffice it
to say at this point that, for the purpose of hearing all sides and considering
the transcendental importance of this case, we will also allow DOEs
intervention.
The Injunctive Writs Are Not Impediments To The Enforcement Of
Ordinance No. 8027
Under Rule 65, Section 359 of the Rules of Court, a petition for mandamus
may be filed when any tribunal, corporation, board, officer or person
unlawfully neglects the performance of an act which the law specifically
enjoins as a duty resulting from an office, trust or station. According to the oil
companies, respondent did not unlawfully fail or neglect to enforce Ordinance
No. 8027 because he was lawfully prevented from doing so by virtue of the
injunctive writs and status quo order issued by the RTC of Manila, Branches
39 and 42.
First, we note that while Chevron and Shell still have in their favor the writs of
preliminary injunction and preliminary mandatory injunction, the status quo
order in favor of Petron is no longer in effect since the court granted the joint
motion of the parties to withdraw the complaint and counterclaim.60
Second, the original parties failed to inform the Court about these injunctive
writs. Respondent (who was also impleaded as a party in the RTC cases)
defends himself by saying that he informed the court of the pendency of the
civil cases and that a TRO was issued by the RTC in the consolidated cases
filed by Chevron and Shell. It is true that had the oil companies only
intervened much earlier, the Court would not have been left in the dark about
these facts. Nevertheless, respondent should have updated the Court, by
way of manifestation, on such a relevant matter.
In his memorandum, respondent mentioned the issuance of a TRO. Under
Section 5 of Rule 58 of the Rules of Court, a TRO issued by the RTC is
effective only for a period of 20 days. This is why, in our March 7, 2007
decision, we presumed with certainty that this had already lapsed.61
Respondent also mentioned the grant of injunctive writs in his rejoinder which
the Court, however, expunged for being a prohibited pleading. The parties
and their counsels were clearly remiss in their duties to this Court.
In resolving controversies, courts can only consider facts and issues pleaded
by the parties.62 Courts, as well as magistrates presiding over them are not
omniscient. They can only act on the facts and issues presented before them
in appropriate pleadings. They may not even substitute their own personal
knowledge for evidence. Nor may they take notice of matters except those
expressly provided as subjects of mandatory judicial notice.
We now proceed to the issue of whether the injunctive writs are legal
impediments to the enforcement of Ordinance No. 8027.
Section 3, Rule 58 of the Rules of Court enumerates the grounds for the
issuance of a writ of preliminary injunction:
SEC. 3. Grounds for issuance of preliminary injunction. A
preliminary injunction may be granted when it is established:
(a) That the applicant is entitled to the relief demanded, and the
whole or part of such relief consists in restraining the commission or
continuance of the act or acts complained of, or in requiring the
performance of an act or acts, either for a limited period or
perpetually;
(b) That the commission, continuance or nonperformance of the act
or acts complained of during the litigation would probably work
injustice to the applicant; or
(g) IThat a party, court, agency or a person is doing, threatening, or
is attempting to do, or is procuring or suffering to be done, some act
or acts probably in violation of the rights of the applicant respecting
the subject of the action or proceeding, and tending to render the
judgment ineffectual.
There are two requisites for the issuance of a preliminary injunction: (1) the
right to be protected exists prima facie and (2) the acts sought to be enjoined
are violative of that right. It must be proven that the violation sought to be
prevented will cause an irreparable injustice.
The act sought to be restrained here was the enforcement of Ordinance No.
8027. It is a settled rule that an ordinance enjoys the presumption of validity
and, as such, cannot be restrained by injunction.63 Nevertheless, when the
validity of the ordinance is assailed, the courts are not precluded from issuing
an injunctive writ against its enforcement. However, we have declared that
the issuance of said writ is proper only when:
... the petitioner assailing the ordinance has made out a case of
unconstitutionality strong enough to overcome, in the mind of
the judge, the presumption of validity, in addition to a showing of
a clear legal right to the remedy sought....64 (Emphasis supplied)
Judge Reynaldo G. Ros, in his order dated May 19, 2003, stated his basis for
issuing the injunctive writs:
 The Court, in resolving whether or not a Writ of Preliminary Injunction
or Preliminary Mandatory Injunction should be issued, is guided by
the following requirements: (1) a clear legal right of the complainant;
(2) a violation of that right; and (3) a permanent and urgent necessity
for the Writ to prevent serious damage. The Court believes that
these requisites are present in these cases.
There is no doubt that the plaintiff/petitioners have been legitimately
operating their business in the Pandacan Terminal for many years
and they have made substantial capital investment therein. Every
year they were issued Business Permits by the City of Manila. Its
operations have not been declared illegal or contrary to law or
morals. In fact, because of its vital importance to the national
economy, it was included in the Investment Priorities Plan as
mandated under the "Downstream Oil Industry Deregulation Act of
1988 (R.A. 8479). As a lawful business, the plaintiff/petitioners have
a right, therefore, to continue their operation in the Pandacan
Terminal and the right to protect their investments. This is a clear
and unmistakable right of the plaintiff/petitioners.
The enactment, therefore, of City Ordinance No. 8027 passed by the
City Council of Manila reclassifying the area where the Pandacan
Terminal is located from Industrial II to Commercial I and requiring
the plaintiff/petitioners to cease and desist from the operation of their
business has certainly violated the rights of the plaintiff/petitioners to
continue their legitimate business in the Pandacan Terminal and
deprived them of their huge investments they put up therein. Thus,
before the Court, therefore, determines whether the Ordinance in
question is valid or not, a Writ of Preliminary Injunction and a Writ of
Mandatory Injunction be issued to prevent serious and irreparable
damage to plaintiff/petitioners.65
Nowhere in the judges discussion can we see that, in addition to a
showing of a clear legal right of Chevron and Shell to the remedy
sought, he was convinced that they had made out a case of
unconstitutionality or invalidity strong enough to overcome the
presumption of validity of the ordinance. Statutes and ordinances are
presumed valid unless and until the courts declare the contrary in clear and
unequivocal terms.66 The mere fact that the ordinance is alleged to be
unconstitutional or invalid will not entitle a party to have its enforcement
enjoined.67 The presumption is all in favor of validity. The reason for this is
obvious:
The action of the elected representatives of the people cannot be
lightly set aside. The councilors must, in the very nature of things, be
familiar with the necessities of their particular municipality and with
all the facts and circumstances which surround the subject and
necessitate action. The local legislative body, by enacting the
ordinance, has in effect given notice that the regulations are
essential to the well being of the people . . . The Judiciary should not
lightly set aside legislative action when there is not a clear invasion
of personal or property rights under the guise of police regulation. 68
Xxx
...[Courts] accord the presumption of constitutionality to legislative
enactments, not only because the legislature is presumed to abide
by the Constitution but also because the judiciary[,] in the
determination of actual cases and controversies[,] must reflect the
wisdom and justice of the people as expressed through their
representatives in the executive and legislative departments of the
government.69
The oil companies argue that this presumption must be set aside when the
invalidity or unreasonableness appears on the face of the ordinance itself.70
We see no reason to set aside the presumption. The ordinance, on its face,
does not at all appear to be unconstitutional. It reclassified the subject area
from industrial to commercial. Prima facie, this power is within the power of
municipal corporations:
The power of municipal corporations to divide their territory into
industrial, commercial and residential zones is recognized in almost
all jurisdictions inasmuch as it is derived from the police power itself
and is exercised for the protection and benefit of their inhabitants.71
Xxx
There can be no doubt that the City of Manila has the power to divide
its territory into residential and industrial zones, and to prescribe that
offensive and unwholesome trades and occupations are to be
established exclusively in the latter zone.
xxx xxx xxx
Likewise, it cannot be denied that the City of Manila has the
authority, derived from the police power, of forbidding the appellant
to continue the manufacture of toyo in the zone where it is now
situated, which has been declared residential....72
Courts will not invalidate an ordinance unless it clearly appears that it is
unconstitutional. There is no such showing here. Therefore, the injunctive
writs issued in the Manila RTCs May 19, 2003 order had no leg to stand on.
We are aware that the issuance of these injunctive writs is not being assailed
as tainted with grave abuse of discretion. However, we are confronted with
the question of whether these writs issued by a lower court are impediments
to the enforcement of Ordinance No. 8027 (which is the subject of the
mandamus petition). As already discussed, we rule in the negative.
Ordinance No. 8027 Was Not Superseded By Ordinance No. 8119
The March 7, 2007 decision did not take into consideration the passage of
Ordinance No. 8119 entitled "An Ordinance Adopting the Manila
Comprehensive Land Use Plan and Zoning Regulations of 2006 and
Providing for the Administration, Enforcement and Amendment thereto"
which was approved by respondent on June 16, 2006. The simple reason
was that the Court was never informed about this ordinance.
While courts are required to take judicial notice of the laws enacted by
Congress, the rule with respect to local ordinances is different. Ordinances
are not included in the enumeration of matters covered by mandatory judicial
notice under Section 1, Rule 129 of the Rules of Court. 73
Although, Section 50 of RA 40974 provides that:
SEC. 50 Judicial notice of ordinances. - All courts sitting in the city
shall take judicial notice of the ordinances passed by the
[Sangguniang Panglungsod].
This cannot be taken to mean that this Court, since it has its seat in the City
of Manila, should have taken steps to procure a copy of the ordinance on its
own, relieving the party of any duty to inform the Court about it.
Even where there is a statute that requires a court to take judicial notice of
municipal ordinances, a court is not required to take judicial notice of
ordinances that are not before it and to which it does not have access. The
party asking the court to take judicial notice is obligated to supply the court
with the full text of the rules the party desires it to have notice of. 75 Counsel
should take the initiative in requesting that a trial court take judicial notice of
an ordinance even where a statute requires courts to take judicial notice of
local ordinances.76
The intent of a statute requiring a court to take judicial notice of a local
ordinance is to remove any discretion a court might have in determining
whether or not to take notice of an ordinance. Such a statute does not direct
the court to act on its own in obtaining evidence for the record and a party
must make the ordinance available to the court for it to take notice. 77
In its defense, respondent claimed that he did not inform the Court about the
enactment of Ordinance No. 8119 because he believed that it was different
from Ordinance No. 8027 and that the two were not inconsistent with each
other.78
In the same way that we deem the intervenors late intervention in this case
unjustified, we find the failure of respondent, who was an original party here,
inexcusable.
The Rule On Judicial Admissions Is Not Applicable Against
Respondent
The oil companies assert that respondent judicially admitted that Ordinance
No. 8027 was repealed by Ordinance No. 8119 in civil case no. 03-106379
(where Petron assailed the constitutionality of Ordinance No. 8027) when the
parties in their joint motion to withdraw complaint and counterclaim stated
that "the issue ...has been rendered moot and academic by virtue of the
passage of [Ordinance No. 8119]."79 They contend that such admission
worked as an estoppel against the respondent.
Respondent countered that this stipulation simply meant that Petron was
recognizing the validity and legality of Ordinance No. 8027 and that it had
conceded the issue of said ordinances constitutionality, opting instead to
question the validity of Ordinance No. 8119.80 The oil companies deny this
and further argue that respondent, in his answer in civil case no. 06-115334
(where Chevron and Shell are asking for the nullification of Ordinance No.
8119), expressly stated that Ordinance No. 8119 replaced Ordinance No.
8027:81
... Under Ordinance No. 8027, businesses whose uses are not in
accord with the reclassification were given six months to cease [their]
operation. Ordinance No. 8119, which in effect, replaced
Ordinance [No.] 8027, merely took note of the time frame provided
for in Ordinance No. 8119.... Ordinance No. 8119 thus provided for
an even longer term, that is[,] seven years;82 (Emphasis supplied)
Rule 129, Section 4 of the Rules of Court provides:
Section 4. Judicial admissions. An admission, verbal or written,
made by a party in the course of the proceedings in the same case,
does not require proof. The admission may be contradicted only by
 showing that it was made through palpable mistake or that no such
admission was made. (Emphasis supplied)
While it is true that a party making a judicial admission cannot subsequently
take a position contrary to or inconsistent with what was pleaded,83 the
aforestated rule is not applicable here. Respondent made the statements
regarding the ordinances in civil case nos. 03-106379 and 06-115334 which
are not "the same" as this case before us.84 To constitute a judicial
admission, the admission must be made in the same case in which it is
offered.
Hence, respondent is not estopped from claiming that Ordinance No. 8119
did not supersede Ordinance No. 8027. On the contrary, it is the oil
companies which should be considered estopped. They rely on the argument
that Ordinance No. 8119 superseded Ordinance No. 8027 but, at the same
time, also impugn its (8119s) validity. We frown on the adoption of
inconsistent positions and distrust any attempt at clever positioning under
one or the other on the basis of what appears advantageous at the moment.
Parties cannot take vacillating or contrary positions regarding the validity of a
statute85 or ordinance. Nonetheless, we will look into the merits of the
argument of implied repeal.
Ordinance No. 8119 Did Not Impliedly Repeal Ordinance No. 8027
Both the oil companies and DOE argue that Ordinance No. 8119 repealed
Ordinance No. 8027. They assert that although there was no express
repeal86 of Ordinance No. 8027, Ordinance No. 8119 impliedly repealed it.
According to the oil companies, Ordinance No. 8119 reclassified the area
covering the Pandacan Terminals to "High Density Residential/Mixed Use
Zone (R-3/MXD)"87 whereas Ordinance No. 8027 reclassified the same area
from Industrial II to Commercial I:
SECTION 1. For the purpose of promoting sound urban planning and
ensuring health, public safety, and general welfare of the residents of
Pandacan and Sta. Ana as well as its adjoining areas, the land use of [those]
portions of land bounded by the Pasig River in the north, PNR Railroad Track
in the east, Beata St. in the south, Palumpong St. in the southwest, and
Estero de Pancacan in the west[,] PNR Railroad in the northwest area,
Estero de Pandacan in the [n]ortheast, Pasig River in the southeast and Dr.
M.L. Carreon in the southwest. The area of Punta, Sta. Ana bounded by the
Pasig River, Marcelino Obrero St., Mayo 28 St., and F. Manalo Street, are
hereby reclassified from Industrial II to Commercial I. (Emphasis
supplied)
Moreover, Ordinance No. 8119 provides for a phase-out of seven years:
SEC. 72. Existing Non-Conforming Uses and Buildings. - The lawful
use of any building, structure or land at the time of the adoption of
this Ordinance may be continued, although such use does not
conform with the provision of the Ordinance, provided:
xxx xxx xxx
(g) In case the non-conforming use is an industrial use:
xxx xxx xxx
d. The land use classified as non-conforming shall
program the phase-out and relocation of the non-
conforming use within seven (7) years from the date of
effectivity of this Ordinance. (Emphasis supplied)
This is opposed to Ordinance No. 8027 which compels affected entities to
vacate the area within six months from the effectivity of the ordinance:
SEC. 3. Owners or operators of industries and other businesses, the
operation of which are no longer permitted under Section 1 hereof,
are hereby given a period of six (6) months from the date of
effectivity of this Ordinance within which to cease and desist from the
operation of businesses which are hereby in consequence,
disallowed.
Ordinance No. 8119 also designated the Pandacan oil depot area as a
"Planned Unit Development/Overlay Zone (O-PUD)":
SEC. 23. Use Regulations in Planned Unit Development/Overlay
Zone (O-PUD). O-PUD Zones are identified specific sites in the
City of Manila wherein the project site is comprehensively planned as
an entity via unitary site plan which permits flexibility in planning/
design, building siting, complementarily of building types and land
uses, usable open spaces and the preservation of significant natural
land features, pursuant to regulations specified for each particular
PUD. Enumerated below are identified PUD:
xxx xxx xxx
6. Pandacan Oil Depot Area
 xxx xxx xxx
Enumerated below are the allowable uses:
1. all uses allowed in all zones where it is located
2. the [Land Use Intensity Control (LUIC)] under which zones are
located shall, in all instances be complied with
3. the validity of the prescribed LUIC shall only be [superseded] by
the development controls and regulations specified for each PUD as
provided for each PUD as provided for by the masterplan of
respective PUDs.88 (Emphasis supplied)
Respondent claims that in passing Ordinance No. 8119, the Sanggunian did
not intend to repeal Ordinance No. 8027 but meant instead to carry over
8027s provisions to 8119 for the purpose of making Ordinance No. 8027
applicable to the oil companies even after the passage of Ordinance No.
8119.89 He quotes an excerpt from the minutes of the July 27, 2004 session
of the Sanggunian during the first reading of Ordinance No. 8119:
Member GARCIA: Your Honor, iyong patungkol po roon sa oil depot
doon sa amin sa Sixth District sa Pandacan, wala pong nakalagay
eith sa ordinansa rito na taliwas o kakaiba roon sa ordinansang
ipinasa noong nakaraang Konseho, iyong Ordinance No. 8027. So
kung ano po ang nandirito sa ordinansa na ipinasa ninyo last time,
iyon lang po ang ni-lift eithe at inilagay eith. At eith eith ordinansang
iyong naipasa ng huling Konseho, niri-classify [ninyo] from
Industrial II to Commercial C-1 ang area ng Pandacan kung nasaan
ang oil depot. So ini-lift lang po [eithe] iyong definition, density, at
saka po yon pong ng noong ordinansa ninyo na siya eith
naming inilagay eith, iniba lang po naming iyong title. So wala po
kaming binago na taliwas o nailagay na taliwas doon sa
ordinansang ipinasa ninyo, ni-lift lang po [eithe] from Ordinance
No. 8027."90 (Emphasis supplied)
We agree with respondent.
Repeal by implication proceeds on the premise that where a statute of later
date clearly reveals the intention of the legislature to abrogate a prior act on
the subject, that intention must be given effect.91
There are two kinds of implied repeal. The first is: where the provisions in the
two acts on the same subject matter are irreconcilably contradictory, the
latter act, to the extent of the conflict, constitutes an implied repeal of the
earlier one.92 The second is: if the later act covers the whole subject of the
earlier one and is clearly intended as a substitute, it will operate to repeal the
earlier law.93 The oil companies argue that the situation here falls under the
first category.
Implied repeals are not favored and will not be so declared unless the intent
of the legislators is manifest.94 As statutes and ordinances are presumed to
be passed only after careful deliberation and with knowledge of all existing
ones on the subject, it follows that, in passing a law, the legislature did not
intend to interfere with or abrogate a former law relating to the same subject
matter.95 If the intent to repeal is not clear, the later act should be construed
as a continuation of, and not a substitute for, the earlier act.96
These standards are deeply enshrined in our jurisprudence. We disagree
that, in enacting Ordinance No. 8119, there was any indication of the
legislative purpose to repeal Ordinance No. 8027.97 The excerpt quoted
above is proof that there was never such an intent. While it is true that both
ordinances relate to the same subject matter, i.e. classification of the land
use of the area where Pandacan oil depot is located, if there is no intent to
repeal the earlier enactment, every effort at reasonable construction must be
made to reconcile the ordinances so that both can be given effect:
The fact that a later enactment may relate to the same subject matter
as that of an earlier statute is not of itself sufficient to cause an
implied repeal of the prior act, since the new statute may merely be
cumulative or a continuation of the old one. What is necessary is a
manifest indication of legislative purpose to repeal.98
For the first kind of implied repeal, there must be an irreconcilable conflict
between the two ordinances. There is no conflict between the two
ordinances. Ordinance No. 8027 reclassified the Pandacan area from
Industrial II to Commercial I. Ordinance No. 8119, in Section 23, designated
it as a "Planned Unit Development/Overlay Zone (O-PUD)." In its Annex C
which defined the zone boundaries,99 the Pandacan area was shown to be
within the "High Density Residential/Mixed Use Zone (R-3/MXD)." These
zone classifications in Ordinance No. 8119 are not inconsistent with the
reclassification of the Pandacan area from Industrial to Commercial in
Ordinance No. 8027. The "O-PUD" classification merely made Pandacan a
"project site ... comprehensively planned as an entity via unitary site plan
which permits flexibility in planning/design, building siting, complementarity of
building types and land uses, usable open spaces and the preservation of
significant natural land features...."100 Its classification as "R-3/MXD" means
that it should "be used primarily for high-rise housing/dwelling purposes and
limited complementary/supplementary trade, services and business
activities."101 There is no conflict since both ordinances actually have a
common objective, i.e., to shift the zoning classification from industrial to
commercial (Ordinance No. 8027) or mixed residential/commercial
(Ordinance No. 8119).
Moreover, it is a well-settled rule in statutory construction that a subsequent
general law does not repeal a prior special law on the same subject unless it
clearly appears that the legislature has intended by the latter general act to
modify or repeal the earlier special law. Generalia specialibus non derogant
(a general law does not nullify a specific or special law).102 This is so even if
the provisions of the general law are sufficiently comprehensive to include
what was set forth in the special act.103 The special act and the general law
must stand together, one as the law of the particular subject and the other as
the law of general application.104 The special law must be taken as intended
to constitute an exception to, or a qualification of, the general act or
provision.105
The reason for this is that the legislature, in passing a law of special
character, considers and makes special provisions for the particular
circumstances dealt with by the special law. This being so, the
legislature, by adopting a general law containing provisions
repugnant to those of the special law and without making any
mention of its intention to amend or modify such special law, cannot
be deemed to have intended an amendment, repeal or modification
of the latter.106
Ordinance No. 8027 is a special law107 since it deals specifically with a
certain area described therein (the Pandacan oil depot area) whereas
Ordinance No. 8119 can be considered a general law108 as it covers the
entire city of Manila.
The oil companies assert that even if Ordinance No. 8027 is a special law,
the existence of an all-encompassing repealing clause in Ordinance No.
8119 evinces an intent on the part of the Sanggunian to repeal the earlier
ordinance:
Sec. 84. Repealing Clause. All ordinances, rules, regulations in
conflict with the provisions of this Ordinance are hereby repealed;
PROVIDED, That the rights that are vested upon the effectivity of
this Ordinance shall not be impaired.
They cited Hospicio de San Jose de Barili, Cebu City v. Department of
Agrarian Reform:109
The presence of such general repealing clause in a later statute
clearly indicates the legislative intent to repeal all prior inconsistent
laws on the subject matter, whether the prior law is a general law or
a special law... Without such a clause, a later general law will
ordinarily not repeal a prior special law on the same subject. But with
such clause contained in the subsequent general law, the prior
special law will be deemed repealed, as the clause is a clear
legislative intent to bring about that result.110
This ruling in not applicable here. The repealing clause of Ordinance No.
8119 cannot be taken to indicate the legislative intent to repeal all prior
inconsistent laws on the subject matter, including Ordinance No. 8027, a
special enactment, since the aforequoted minutes (an official record of the
discussions in the Sanggunian) actually indicated the clear intent to preserve
the provisions of Ordinance No. 8027.
To summarize, the conflict between the two ordinances is more apparent
than real. The two ordinances can be reconciled. Ordinance No. 8027 is
applicable to the area particularly described therein whereas Ordinance No.
8119 is applicable to the entire City of Manila.
Mandamus Lies To Compel Respondent Mayor To Enforce Ordinance
No. 8027
The oil companies insist that mandamus does not lie against respondent in
consideration of the separation of powers of the executive and judiciary.111
This argument is misplaced. Indeed,
[the] Courts will not interfere by mandamus proceedings with the
legislative [or executive departments] of the government in the
legitimate exercise of its powers, except to enforce mere
ministerial acts required by law to be performed by some officer
thereof.112 (Emphasis Supplied)
since this is the function of a writ of mandamus, which is the power to compel
"the performance of an act which the law specifically enjoins as a duty
resulting from office, trust or station."113
They also argue that petitioners had a plain, speedy and adequate remedy to
compel respondent to enforce Ordinance No. 8027 which was to seek relief
from the President of the Philippines through the Secretary of the
Department of Interior and Local Government (DILG) by virtue of the
Presidents power of supervision over local government units. Again, we
disagree. A party need not go first to the DILG in order to compel the
enforcement of an ordinance. This suggested process would be
unreasonably long, tedious and consequently injurious to the interests of the
local government unit (LGU) and its constituents whose welfare is sought to
be protected. Besides, petitioners resort to an original action for mandamus
before this Court is undeniably allowed by the Constitution.114
Ordinance No. 8027 Is Constitutional And Valid
Having ruled that there is no impediment to the enforcement of Ordinance
No. 8027, we now proceed to make a definitive ruling on its constitutionality
and validity.
The tests of a valid ordinance are well established. For an ordinance to be
valid, it must not only be within the corporate powers of the LGU to enact and
be passed according to the procedure prescribed by law, it must also
conform to the following substantive requirements: (1) must not contravene
the Constitution or any statute; (2) must not be unfair or oppressive; (3) must
not be partial or discriminatory; (4) must not prohibit but may regulate trade;
(5) must be general and consistent with public policy and (6) must not be
unreasonable.115
The City of Manila Has The Power To Enact Ordinance No. 8027
Ordinance No. 8027 was passed by the Sangguniang Panlungsod of Manila
in the exercise of its police power. Police power is the plenary power vested
in the legislature to make statutes and ordinances to promote the health,
morals, peace, education, good order or safety and general welfare of the
people.116 This power flows from the recognition that salus populi est
suprema lex (the welfare of the people is the supreme law).117 While police
power rests primarily with the national legislature, such power may be
delegated.118 Section 16 of the LGC, known as the general welfare clause,
encapsulates the delegated police power to local governments:119
Section 16. General Welfare. Every local government unit shall
exercise the powers expressly granted, those necessarily implied
therefrom, as well as powers necessary, appropriate, or incidental for
its efficient and effective governance, and those which are essential
to the promotion of the general welfare. Within their respective
territorial jurisdictions, local government units shall ensure and
support, among other things, the preservation and enrichment of
culture, promote health and safety, enhance the right of the people to
a balanced ecology, encourage and support the development of
appropriate and self-reliant scientific and technological capabilities,
improve public morals, enhance economic prosperity and social
justice, promote full employment among their residents, maintain
peace and order, and preserve the comfort and convenience of their
inhabitants.
LGUs like the City of Manila exercise police power through their respective
legislative bodies, in this case, the Sangguniang Panlungsod or the city
council. Specifically, the Sanggunian can enact ordinances for the general
welfare of the city:
Section. 458. Powers, Duties, Functions and Compensation. (a)
The sangguniang panglungsod, as the legislative branch of the city,
shall enact ordinances, approve resolutions and appropriate funds
for the general welfare of the city and its inhabitants pursuant to
Section 16 of this Code xxxx
This police power was also provided for in RA 409 or the Revised Charter of
the City of Manila:
Section 18. Legislative powers. The [City Council] shall have the
following legislative powers:
xxx xxx xxx
(g) To enact all ordinances it may deem necessary and proper for
the sanitation and safety, the furtherance of the prosperity, and the
promotion of the morality, peace, good order, comfort, convenience,
and general welfare of the city and its inhabitants, and such others
as may be necessary to carry into effect and discharge the powers
and duties conferred by this chapter xxxx120
Specifically, the Sanggunian has the power to "reclassify land within the
jurisdiction of the city."121
The Enactment Of Ordinance No. 8027 Is A Legitimate Exercise Of
Police Power
As with the State, local governments may be considered as having properly
exercised their police power only if the following requisites are met: (1) the
interests of the public generally, as distinguished from those of a particular
class, require its exercise and (2) the means employed are reasonably
necessary for the accomplishment of the purpose and not unduly oppressive
upon individuals. In short, there must be a concurrence of a lawful subject
and a lawful method.122
Ordinance No. 8027 was enacted "for the purpose of promoting sound urban
planning, ensuring health, public safety and general welfare"123 of the
residents of Manila. The Sanggunian was impelled to take measures to
protect the residents of Manila from catastrophic devastation in case of a
terrorist attack on the Pandacan Terminals. Towards this objective, the
Sanggunian reclassified the area defined in the ordinance from industrial to
commercial.
The following facts were found by the Committee on Housing, Resettlement
and Urban Development of the City of Manila which recommended the
approval of the ordinance:
(1) the depot facilities contained 313.5 million liters of highly flammable and
highly volatile products which include petroleum gas, liquefied petroleum gas,
aviation fuel, diesel, gasoline, kerosene and fuel oil among others;
(2) the depot is open to attack through land, water or air;
(3) it is situated in a densely populated place and near Malacaang Palace
and
(4) in case of an explosion or conflagration in the depot, the fire could spread
to the neighboring communities.124
The ordinance was intended to safeguard the rights to life, security and
safety of all the inhabitants of Manila and not just of a particular class.125 The
depot is perceived, rightly or wrongly, as a representation of western
interests which means that it is a terrorist target. As long as it there is such a
target in their midst, the residents of Manila are not safe. It therefore became
necessary to remove these terminals to dissipate the threat. According to
respondent:
Such a public need became apparent after the 9/11 incident which
showed that what was perceived to be impossible to happen, to the
most powerful country in the world at that, is actually possible. The
destruction of property and the loss of thousands of lives on that
fateful day became the impetus for a public need. In the aftermath of
the 9/11 tragedy, the threats of terrorism continued [such] that it
became imperative for governments to take measures to combat
their effects.126
Wide discretion is vested on the legislative authority to determine not only
what the interests of the public require but also what measures are
necessary for the protection of such interests.127 Clearly, the Sanggunian
was in the best position to determine the needs of its constituents.
In the exercise of police power, property rights of individuals may be
subjected to restraints and burdens in order to fulfill the objectives of the
government.128 Otherwise stated, the government may enact legislation that
may interfere with personal liberty, property, lawful businesses and
occupations to promote the general welfare.129 However, the interference
must be reasonable and not arbitrary. And to forestall arbitrariness, the
methods or means used to protect public health, morals, safety or welfare
must have a reasonable relation to the end in view.130
The means adopted by the Sanggunian was the enactment of a zoning
ordinance which reclassified the area where the depot is situated from
industrial to commercial. A zoning ordinance is defined as a local city or
municipal legislation which logically arranges, prescribes, defines and
apportions a given political subdivision into specific land uses as present and
future projection of needs.131 As a result of the zoning, the continued
operation of the businesses of the oil companies in their present location will
no longer be permitted. The power to establish zones for industrial,
commercial and residential uses is derived from the police power itself and is
exercised for the protection and benefit of the residents of a locality.132
Consequently, the enactment of Ordinance No. 8027 is within the power of
the Sangguniang Panlungsod of the City of Manila and any resulting burden
on those affected cannot be said to be unjust:
There can be no doubt that the City of Manila has the power to divide
its territory into residential and industrial zones, and to prescribe that
offensive and unwholesome trades and occupations are to be
established exclusively in the latter zone.
"The benefits to be derived by cities adopting such regulations
(zoning) may be summarized as follows: They attract a desirable and
assure a permanent citizenship; they foster pride in and attachment
to the city; they promote happiness and contentment; they stabilize
the use and value of property and promote the peace, [tranquility],
and good order of the city. We do not hesitate to say that the
attainment of these objects affords a legitimate field for the exercise
of the police power. He who owns property in such a district is not
deprived of its use by such regulations. He may use it for the
purposes to which the section in which it is located is dedicated. That
he shall not be permitted to use it to the desecration of the
community constitutes no unreasonable or permanent hardship and
results in no unjust burden."
xxx xxx xxx
"The 14th Amendment protects the citizen in his right to engage in
any lawful business, but it does not prevent legislation intended to
regulate useful occupations which, because of their nature or
location, may prove injurious or offensive to the public." 133
We entertain no doubt that Ordinance No. 8027 is a valid police power
measure because there is a concurrence of lawful subject and lawful method.
Ordinance No. 8027 Is Not Unfair, Oppressive Or Confiscatory Which
Amounts To Taking Without Compensation
According to the oil companies, Ordinance No. 8027 is unfair and oppressive
as it does not only regulate but also absolutely prohibits them from
conducting operations in the City of Manila. Respondent counters that this is
not accurate since the ordinance merely prohibits the oil companies from
operating their businesses in the Pandacan area.
Indeed, the ordinance expressly delineated in its title and in Section 1 what it
pertained to. Therefore, the oil companies contention is not supported by the
text of the ordinance. Respondent succinctly stated that:
The oil companies are not forbidden to do business in the City of
Manila. They may still very well do so, except that their oil storage
facilities are no longer allowed in the Pandacan area. Certainly, there
are other places in the City of Manila where they can conduct this
specific kind of business. Ordinance No. 8027 did not render the oil
companies illegal. The assailed ordinance affects the oil companies
business only in so far as the Pandacan area is concerned.134
The oil companies are not prohibited from doing business in other
appropriate zones in Manila. The City of Manila merely exercised its power to
regulate the businesses and industries in the zones it established:
As to the contention that the power to regulate does not include the
power to prohibit, it will be seen that the ordinance copied above
does not prohibit the installation of motor engines within the
municipality of Cabanatuan but only within the zone therein fixed. If
the municipal council of Cabanatuan is authorized to establish said
zone, it is also authorized to provide what kind of engines may be
installed therein. In banning the installation in said zone of all
engines not excepted in the ordinance, the municipal council of
Cabanatuan did no more than regulate their installation by means of
zonification.135
The oil companies aver that the ordinance is unfair and oppressive because
they have invested billions of pesos in the depot.136 Its forced closure will
result in huge losses in income and tremendous costs in constructing new
facilities.
Their contention has no merit. In the exercise of police power, there is a
limitation on or restriction of property interests to promote public welfare
which involves no compensable taking. Compensation is necessary only
when the states power of eminent domain is exercised. In eminent domain,
property is appropriated and applied to some public purpose. Property
condemned under the exercise of police power, on the other hand, is noxious
or intended for a noxious or forbidden purpose and, consequently, is not
compensable.137 The restriction imposed to protect lives, public health and
safety from danger is not a taking. It is merely the prohibition or abatement of
a noxious use which interferes with paramount rights of the public.
Property has not only an individual function, insofar as it has to provide for
the needs of the owner, but also a social function insofar as it has to provide
for the needs of the other members of society.138 The principle is this:
Police power proceeds from the principle that every holder of
property, however absolute and unqualified may be his title, holds it
under the implied liability that his use of it shall not be injurious to the
equal enjoyment of others having an equal right to the enjoyment of
their property, nor injurious to the right of the community. Rights of
property, like all other social and conventional rights, are subject to
reasonable limitations in their enjoyment as shall prevent them from
being injurious, and to such reasonable restraints and regulations
established by law as the legislature, under the governing and
controlling power vested in them by the constitution, may think
necessary and expedient.139
In the regulation of the use of the property, nobody else acquires the use or
interest therein, hence there is no compensable taking.140 In this case, the
properties of the oil companies and other businesses situated in the affected
area remain theirs. Only their use is restricted although they can be applied
to other profitable uses permitted in the commercial zone.
Ordinance No. 8027 Is Not Partial And Discriminatory
The oil companies take the position that the ordinance has discriminated
against and singled out the Pandacan Terminals despite the fact that the
Pandacan area is congested with buildings and residences that do not
comply with the National Building Code, Fire Code and Health and Sanitation
Code.141
This issue should not detain us for long. An ordinance based on reasonable
classification does not violate the constitutional guaranty of the equal
protection of the law.142 The requirements for a valid and reasonable
classification are: (1) it must rest on substantial distinctions; (2) it must be
germane to the purpose of the law; (3) it must not be limited to existing
conditions only and (4) it must apply equally to all members of the same
class.143
The law may treat and regulate one class differently from another class
provided there are real and substantial differences to distinguish one class
from another.144 Here, there is a reasonable classification. We reiterate that
what the ordinance seeks to prevent is a catastrophic devastation that will
result from a terrorist attack. Unlike the depot, the surrounding community is
not a high-value terrorist target. Any damage caused by fire or explosion
occurring in those areas would be nothing compared to the damage caused
by a fire or explosion in the depot itself. Accordingly, there is a substantial
distinction. The enactment of the ordinance which provides for the cessation
of the operations of these terminals removes the threat they pose. Therefore
it is germane to the purpose of the ordinance. The classification is not limited
to the conditions existing when the ordinance was enacted but to future
conditions as well. Finally, the ordinance is applicable to all businesses and
industries in the area it delineated.
Ordinance No. 8027 is Not Inconsistent With RA 7638 And RA 8479
The oil companies and the DOE assert that Ordinance No. 8027 is
unconstitutional because it contravenes RA 7638 (DOE Act of 1992) 145 and
RA 8479 (Downstream Oil Industry Deregulation Law of 1998).146 They argue
that through RA 7638, the national legislature declared it a policy of the state
"to ensure a continuous, adequate, and economic supply of energy" 147 and
created the DOE to implement this policy. Thus, under Section 5 I, DOE is
empowered to "establish and administer programs for the exploration,
transportation, marketing, distribution, utilization, conservation, stockpiling,
and storage of energy resources." Considering that the petroleum products
contained in the Pandacan Terminals are major and critical energy
resources, they conclude that their administration, storage, distribution and
transport are of national interest and fall under DOEs primary and exclusive
jurisdiction.148
They further assert that the terminals are necessary for the delivery of
immediate and adequate supply of oil to its recipients in the most economical
way.149 Local legislation such as Ordinance No. 8027 (which effectively calls
for the removal of these terminals) allegedly frustrates the state policy of
ensuring a continuous, adequate, and economic supply of energy expressed
in RA 7638, a national law.150 Likewise, the ordinance thwarts the
determination of the DOE that the terminals operations should be merely
scaled down and not discontinued.151 They insist that this should not be
allowed considering that it has a nationwide economic impact and affects
public interest transcending the territorial jurisdiction of the City of Manila. 152
According to them, the DOEs supervision over the oil industry under RA
7638 was subsequently underscored by RA 8479, particularly in Section 7
thereof:
SECTION 7. Promotion of Fair Trade Practices. The Department
of Trade and Industry (DTI) and DOE shall take all measures to
promote fair trade and prevent cartelization, monopolies,
combinations in restraint of trade, and any unfair competition in the
Industry as defined in Article 186 of the Revised Penal Code, and
Articles 168 and 169 of Republic Act No. 8293, otherwise known as
the "Intellectual Property Rights Law". The DOE shall continue to
encourage certain practices in the Industry which serve the
public interest and are intended to achieve efficiency and cost
reduction, ensure continuous supply of petroleum products,
and enhance environmental protection. These practices may include
borrow-and-loan agreements, rationalized depot and manufacturing
operations, hospitality agreements, joint tanker and pipeline
utilization, and joint actions on oil spill control and fire prevention.
(Emphasis supplied)
Respondent counters that DOEs regulatory power does not preclude LGUs
from exercising their police power.153
Indeed, ordinances should not contravene existing statutes enacted by
Congress. The rationale for this was clearly explained in Magtajas vs. Pryce
Properties Corp., Inc.:154
The rationale of the requirement that the ordinances should not
contravene a statute is obvious. Municipal governments are only
agents of the national government. Local councils exercise only
delegated legislative powers conferred on them by Congress as the
national lawmaking body. The delegate cannot be superior to the
principal or exercise powers higher than those of the latter. It is a
heresy to suggest that the local government units can undo the acts
of Congress, from which they have derived their power in the first
place, and negate by mere ordinance the mandate of the statute.
"Municipal corporations owe their origin to, and derive their powers
and rights wholly from the legislature. It breathes into them the
breath of life, without which they cannot exist. As it creates, so it may
destroy. As it may destroy, it may abridge and control. Unless there
is some constitutional limitation on the right, the legislature might, by
a single act, and if we can suppose it capable of so great a folly and
so great a wrong, sweep from existence all of the municipal
corporations in the State, and the corporation could not prevent it.
 We know of no limitation on the right so far as to the corporation
themselves are concerned. They are, so to phrase it, the mere
tenants at will of the legislature."
This basic relationship between the national legislature and the local
government units has not been enfeebled by the new provisions in
the Constitution strengthening the policy of local autonomy. Without
meaning to detract from that policy, we here confirm that Congress
retains control of the local government units although in significantly
reduced degree now than under our previous Constitutions. The
power to create still includes the power to destroy. The power to
grant still includes the power to withhold or recall. True, there are
certain notable innovations in the Constitution, like the direct
conferment on the local government units of the power to tax, which
cannot now be withdrawn by mere statute. By and large, however,
the national legislature is still the principal of the local government
units, which cannot defy its will or modify or violate it.155
The question now is whether Ordinance No. 8027 contravenes RA 7638 and
RA 8479. It does not.
Under Section 5 I of RA 7638, DOE was given the power to "establish and
administer programs for the exploration, transportation, marketing,
distribution, utilization, conservation, stockpiling, and storage of energy
resources." On the other hand, under Section 7 of RA 8749, the DOE "shall
continue to encourage certain practices in the Industry which serve the public
interest and are intended to achieve efficiency and cost reduction, ensure
continuous supply of petroleum products." Nothing in these statutes prohibits
the City of Manila from enacting ordinances in the exercise of its police
power.
The principle of local autonomy is enshrined in and zealously protected
under the Constitution. In Article II, Section 25 thereof, the people expressly
adopted the following policy:
Section 25. The State shall ensure the autonomy of local
governments.
An entire article (Article X) of the Constitution has been devoted to
guaranteeing and promoting the autonomy of LGUs. The LGC was specially
promulgated by Congress to ensure the autonomy of local governments as
mandated by the Constitution:
Sec. 2. Declaration of Policy. (a) It is hereby declared the policy
of the State that the territorial and political subdivisions of the
State shall enjoy genuine and meaningful local autonomy to
enable them to attain their fullest development as self-reliant
communities and make them more effective partners in the
attainment of national goals. Toward this end, the State shall
provide for a more responsive and accountable local government
structure instituted through a system of decentralization whereby
local government units shall be given more powers, authority,
responsibilities, and resources. The process of decentralization shall
proceed from the National Government to the local government
units. (Emphasis supplied)
We do not see how the laws relied upon by the oil companies and DOE
stripped the City of Manila of its power to enact ordinances in the exercise of
its police power and to reclassify the land uses within its jurisdiction. To guide
us, we shall make a brief survey of our decisions where the police power
measure of the LGU clashed with national laws.
In Tan v. Perea,156 the Court ruled that Ordinance No. 7 enacted by the
municipality of Daanbantayan, Cebu allowing the operation of three cockpits
was invalid for violating PD 449 (or the Cockfighting Law of 1974) which
permitted only one cockpit per municipality.
In Batangas CATV, Inc. v. Court of Appeals,157 the Sangguniang Panlungsod
of Batangas City enacted Resolution No. 210 granting Batangas CATV, Inc.
a permit to operate a cable television (CATV) system in Batangas City. The
Court held that the LGU did not have the authority to grant franchises to
operate a CATV system because it was the National Telecommunications
Commission (NTC) that had the power under EO Nos. 205 and 436 to
regulate CATV operations. EO 205 mandated the NTC to grant certificates of
authority to CATV operators while EO 436 vested on the NTC the power to
regulate and supervise the CATV industry.
In Lina, Jr. v. Pao,158 we held that Kapasiyahan Bilang 508, Taon 1995 of
the Sangguniang Panlalawigan of Laguna could not be used as justification
to prohibit lotto in the municipality of San Pedro, Laguna because lotto was
duly authorized by RA 1169, as amended by BP 42. This law granted a
franchise to the Philippine Charity Sweepstakes Office and allowed it to
operate lotteries.
In Magtajas v. Pryce Properties Corp., Inc.,159 the Sangguniang Panlungsod
of Cagayan de Oro City passed Ordinance Nos. 3353 and 3375-93
prohibiting the operation of casinos in the city. We ruled that these
ordinances were void for contravening PD 1869 or the charter of the
Philippine Amusements and Gaming Corporation which had the power to
operate casinos.
The common dominator of all of these cases is that the national laws were
clearly and expressly in conflict with the ordinances/resolutions of the LGUs.
The inconsistencies were so patent that there was no room for doubt. This is
not the case here.
The laws cited merely gave DOE general powers to "establish and
administer programs for the exploration, transportation, marketing,
distribution, utilization, conservation, stockpiling, and storage of energy
resources" and "to encourage certain practices in the [oil] industry which
serve the public interest and are intended to achieve efficiency and cost
reduction, ensure continuous supply of petroleum products." These powers
can be exercised without emasculating the LGUs of the powers granted
them. When these ambiguous powers are pitted against the unequivocal
power of the LGU to enact police power and zoning ordinances for the
general welfare of its constituents, it is not difficult to rule in favor of the latter.
Considering that the powers of the DOE regarding the Pandacan Terminals
are not categorical, the doubt must be resolved in favor of the City of Manila:
SECTION 5. Rules of Interpretation. In the interpretation of the
provisions of this Code, the following rules shall apply:
(a) Any provision on a power of a local government unit shall be
liberally interpreted in its favor, and in case of doubt, any question
thereon shall be resolved in favor of devolution of powers and of the
lower local government unit. Any fair and reasonable doubt as to the
existence of the power shall be interpreted in favor of the local
government unit concerned;
xxx xxx xxx
(g) IThe general welfare provisions in this Code shall be liberally
interpreted to give more powers to local government units in
accelerating economic development and upgrading the quality of life
for the people in the community xxxx
The least we can do to ensure genuine and meaningful local
autonomy is not to force an interpretation that negates powers
explicitly granted to local governments. To rule against the power of
LGUs to reclassify areas within their jurisdiction will subvert the
principle of local autonomy guaranteed by the Constitution.160 As we
have noted in earlier decisions, our national officials should not only
comply with the constitutional provisions on local autonomy but
should also appreciate the spirit and liberty upon which these
provisions are based.161
The DOE Cannot Exercise The Power Of Control Over LGUs
Another reason that militates against the DOEs assertions is that Section 4
of Article X of the Constitution confines the Presidents power over LGUs to
one of general supervision:
SECTION 4. The President of the Philippines shall exercise general
supervision over local governments. Xxxx
Consequently, the Chief Executive or his or her alter egos, cannot exercise
the power of control over them.162 Control and supervision are distinguished
as follows:
[Supervision] means overseeing or the power or authority of an
officer to see that subordinate officers perform their duties. If the
latter fail or neglect to fulfill them, the former may take such action or
step as prescribed by law to make them perform their duties. Control,
on the other hand, means the power of an officer to alter or modify or
nullify or set aside what a subordinate officer ha[s] done in the
performance of his duties and to substitute the judgment of the
former for that of the latter.163
Supervisory power, when contrasted with control, is the power of mere
oversight over an inferior body; it does not include any restraining authority
over such body.164 It does not allow the supervisor to annul the acts of the
subordinate.165 Here, what the DOE seeks to do is to set aside an ordinance
enacted by local officials, a power that not even its principal, the President,
has. This is because:
Under our present system of government, executive power is vested
in the President. The members of the Cabinet and other executive
officials are merely alter egos. As such, they are subject to the power
of control of the President, at whose will and behest they can be
removed from office; or their actions and decisions changed,
suspended or reversed. In contrast, the heads of political
subdivisions are elected by the people. Their sovereign powers
emanate from the electorate, to whom they are directly accountable.
By constitutional fiat, they are subject to the Presidents supervision
only, not control, so long as their acts are exercised within the
sphere of their legitimate powers. By the same token, the President
may not withhold or alter any authority or power given them by the
Constitution and the law.166
Thus, the President and his or her alter egos, the department heads, cannot
interfere with the activities of local governments, so long as they act within
the scope of their authority. Accordingly, the DOE cannot substitute its own
discretion for the discretion exercised by the sanggunian of the City of
Manila. In local affairs, the wisdom of local officials must prevail as long as
they are acting within the parameters of the Constitution and the law.167
Ordinance No. 8027 Is Not Invalid For Failure To Comply With RA 7924
And EO 72
The oil companies argue that zoning ordinances of LGUs are required to be
submitted to the Metropolitan Manila Development Authority (MMDA) for
review and if found to be in compliance with its metropolitan physical
framework plan and regulations, it shall endorse the same to the Housing
and Land Use Regulatory Board (HLURB). Their basis is Section 3 (e) of RA
7924:168
SECTION 3. Scope of MMDA Services. Metro-wide services
under the jurisdiction of the MMDA are those services which have
metro-wide impact and transcend local political boundaries or entail
huge expenditures such that it would not be viable for said services
to be provided by the individual [LGUs] comprising Metropolitan
Manila. These services shall include:
xxx xxx xxx
(g) Urban renewal, zoning, and land use planning, and shelter
services which include the formulation, adoption and implementation
of policies, standards, rules and regulations, programs and projects
to rationalize and optimize urban land use and provide direction to
urban growth and expansion, the rehabilitation and development of
slum and blighted areas, the development of shelter and housing
facilities and the provision of necessary social services thereof.
(Emphasis supplied)
Reference was also made to Section 15 of its implementing rules:
Section 15. Linkages with HUDCC, HLURB, NHA, LGUs and Other
National Government Agencies Concerned on Urban Renewal,
Zoning and Land Use Planning and Shelter Services. Within the
context of the National Housing and Urban Development Framework,
and pursuant to the national standards, guidelines and regulations
formulated by the Housing and Land Use Regulatory Board [HLURB]
on land use planning and zoning, the [MMDA] shall prepare a
metropolitan physical framework plan and regulations which shall
complement and translate the socio-economic development plan for
Metro Manila into physical or spatial terms, and provide the basis for
the preparation, review, integration and implementation of local land
use plans and zoning, ordinance of cities and municipalities in the
area.
Said framework plan and regulations shall contain, among others,
planning and zoning policies and procedures that shall be observed
by local government units in the preparation of their own plans and
ordinances pursuant to Section 447 and 458 of RA 7160, as well as
the identification of sites and projects that are considered to be of
national or metropolitan significance.
Cities and municipalities shall prepare their respective land use
plans and zoning ordinances and submit the same for review
and integration by the [MMDA] and indorsement to HLURB in
accordance with Executive Order No. 72 and other pertinent
laws.
In the preparation of a Metropolitan Manila physical framework plan
and regulations, the [MMDA] shall coordinate with the Housing and
Urban Development Coordinating Council, HLURB, the National
Housing Authority, Intramuros Administration, and all other agencies
of the national government which are concerned with land use and
zoning, urban renewal and shelter services. (Emphasis supplied)
They also claim that EO 72169 provides that zoning ordinances of cities and
municipalities of Metro Manila are subject to review by the HLURB to ensure
compliance with national standards and guidelines. They cite Section 1,
paragraphs I, (e), (f) and (g):
SECTION 1. Plan formulation or updating.
xxx xxx xxx
(g) Cities and municipalities of Metropolitan Manila shall
continue to formulate or update their respective
comprehensive land use plans, in accordance with the
land use planning and zoning standards and guidelines
prescribed by the HLURB pursuant to EO 392, S. of 1990,
and other pertinent national policies.
xxx xxx xxx
(e) Pursuant to LOI 729, S. of 1978, EO 648, S. of 1981, and RA
7279, the comprehensive land use plans of provinces, highly
urbanized cities and independent component cities shall be reviewed
 and ratified by the HLURB to ensure compliance with national
standards and guidelines.
(f) Pursuant to EO 392, S. of 1999, the comprehensive land use
plans of cities and municipalities of Metropolitan Manila shall be
reviewed by the HLURB to ensure compliance with national
standards and guidelines.
(g) Said review shall be completed within three (3) months upon
receipt thereof otherwise, the same shall be deemed consistent with
law, and, therefore, valid. (Emphasis supplied)
They argue that because Ordinance No. 8027 did not go through this review
process, it is invalid.
The argument is flawed.
RA 7942 does not give MMDA the authority to review land use plans and
zoning ordinances of cities and municipalities. This was only found in its
implementing rules which made a reference to EO 72. EO 72 expressly
refers to comprehensive land use plans (CLUPs) only. Ordinance No. 8027 is
admittedly not a CLUP nor intended to be one. Instead, it is a very specific
ordinance which reclassified the land use of a defined area in order to
prevent the massive effects of a possible terrorist attack. It is Ordinance No.
8119 which was explicitly formulated as the "Manila [CLUP] and Zoning
Ordinance of 2006." CLUPs are the ordinances which should be submitted to
the MMDA for integration in its metropolitan physical framework plan and
approved by the HLURB to ensure that they conform with national guidelines
and policies.
Moreover, even assuming that the MMDA review and HLURB ratification are
necessary, the oil companies did not present any evidence to show that
these were not complied with. In accordance with the presumption of validity
in favor of an ordinance, its constitutionality or legality should be upheld in
the absence of proof showing that the procedure prescribed by law was not
observed. The burden of proof is on the oil companies which already had
notice that this Court was inclined to dispose of all the issues in this case.
Yet aside from their bare assertion, they did not present any certification from
the MMDA or the HLURB nor did they append these to their pleadings.
Clearly, they failed to rebut the presumption of validity of Ordinance No.
8027.170
Conclusion
Essentially, the oil companies are fighting for their right to property. They
allege that they stand to lose billions of pesos if forced to relocate. However,
based on the hierarchy of constitutionally protected rights, the right to life
enjoys precedence over the right to property.171 The reason is obvious: life is
irreplaceable, property is not. When the state or LGUs exercise of police
power clashes with a few individuals right to property, the former should
prevail.172
Both law and jurisprudence support the constitutionality and validity of
Ordinance No. 8027. Without a doubt, there are no impediments to its
enforcement and implementation. Any delay is unfair to the inhabitants of the
City of Manila and its leaders who have categorically expressed their desire
for the relocation of the terminals. Their power to chart and control their own
destiny and preserve their lives and safety should not be curtailed by the
intervenors warnings of doomsday scenarios and threats of economic
disorder if the ordinance is enforced.
Secondary to the legal reasons supporting the immediate implementation of
Ordinance No. 8027 are the policy considerations which drove Manilas
government to come up with such a measure:
... [The] oil companies still were not able to allay the apprehensions
of the city regarding the security threat in the area in general. No
specific action plan or security measures were presented that would
prevent a possible large-scale terrorist or malicious attack especially
an attack aimed at Malacaang. The measures that were installed
were more directed towards their internal security and did not include
the prevention of an external attack even on a bilateral level of
cooperation between these companies and the police and military.
xxx xxx xxx
It is not enough for the city government to be told by these oil
companies that they have the most sophisticated fire-fighting
equipments and have invested millions of pesos for these
equipments. The city government wants to be assured that its
residents are safe at any time from these installations, and in the
three public hearings and in their position papers, not one statement
has been said that indeed the absolute safety of the residents from
the hazards posed by these installations is assured.173
We are also putting an end to the oil companies determination to prolong
their stay in Pandacan despite the objections of Manilas residents. As early
as October 2001, the oil companies signed a MOA with the DOE obliging
themselves to:
 ... undertake a comprehensive and comparative study ... [which]
shall include the preparation of a Master Plan, whose aim is to
determine the scope and timing of the feasible location of the
Pandacan oil terminals and all associated facilities and infrastructure
including government support essential for the relocation such as the
necessary transportation infrastructure, land and right of way
acquisition, resettlement of displaced residents and environmental
and social acceptability which shall be based on mutual benefit of the
Parties and the public.174
Now that they are being compelled to discontinue their operations in the
Pandacan Terminals, they cannot feign unreadiness considering that they
had years to prepare for this eventuality.
Just the same, this Court is not about to provoke a crisis by ordering the
immediate relocation of the Pandacan Terminals out of its present site. The
enforcement of a decision of this Court, specially one with far-reaching
consequences, should always be within the bounds of reason, in accordance
with a comprehensive and well-coordinated plan, and within a time-frame
that complies with the letter and spirit of our resolution. To this end, the oil
companies have no choice but to obey the law.
A Warning To Petitioners Counsel
We draw the attention of the parties to a matter of grave concern to the legal
profession.
Petitioners and their counsel, Atty. Samson Alcantara, submitted a four-page
memorandum that clearly contained either substance nor research. It is
absolutely insulting to this Court.
We have always tended towards judicial leniency, temperance and
compassion to those who suffer from a wrong perception of what the majesty
of the law means. But for a member of the bar, an officer of the court, to file
in this Court a memorandum of such unacceptable quality is an entirely
different matter.
It is indicative less of a personal shortcoming or contempt of this Court and
more of a lawyers sorry descent from a high sense of duty and responsibility.
As a member of the bar and as an officer of the court, a lawyer ought to be
keenly aware that the chief safeguard of the body politic is respect for the law
and its magistrates.
There is nothing more effective than the written word by which counsel can
persuade this Court of the righteousness of his cause. For if truth were self-
evident, a memorandum would be completely unnecessary and superfluous.
The inability of counsel to prepare a memorandum worthy of this Courts
consideration is an ejemplo malo to the legal profession as it betrays no
genuine interest in the cause he claims to espouse. Or did counsel think he
can earn his moment of glory without the hard work and dedication called for
by his petition?
A Final Word On Wednesday, January 23, 2008, a defective tanker
containing 2,000 liters of gasoline and 14,000 liters of diesel exploded in the
middle of the street a short distance from the exit gate of the Pandacan
Terminals, causing death, extensive damage and a frightening conflagration
in the vicinity of the incident. Need we say anthing about what will happen if it
is the estimated 162 to 211 million liters175 of petroleum products in the
terminal complex which blow up?
WHEREFORE, the motions for leave to intervene of Chevron Philippines
Inc., Petron Corporation and Pilipinas Shell Petroleum Corporation, and the
Republic of the Philippines, represented by the Department of Energy, are
hereby GRANTED. Their respective motions for reconsideration are hereby
DENIED. The Regional Trial Court, Manila, Branch 39 is ORDERED to
DISMISS the consolidated cases of Civil Case No. 03-106377 and Civil Case
No. 03-106380.
We reiterate our order to respondent Mayor of the City of Manila to enforce
Ordinance No. 8027. In coordination with the appropriate agencies and other
parties involved, respondent Mayor is hereby ordered to oversee the
relocation and transfer of the Pandacan Terminals out of its present site.
To ensure the orderly transfer, movement and relocation of assets and
personnel, the intervenors Chevron Philippines Inc., Petron Corporation and
Pilipinas Shell Petroleum Corporation shall, within a non-extendible period of
ninety (90) days, submit to the Regional Trial Court of Manila, Branch 39, the
comprehensive plan and relocation schedule which have allegedly been
prepared. The presiding judge of Manila RTC, Branch 39 will monitor the
strict enforcement of this resolution.
Atty. Samson Alcantara is hereby ordered to explain within five (5) days from
notice why he should not be disciplined for his refusal, or inability, to file a
memorandum worthy of the consideration of this Court.
Treble costs against petitioners counsel, Atty. Samson Alcantara. SO
ORDERED.
G.R. No. 111097 July 20, 1994 Sec. 1. That pursuant to the policy of the city banning the
operation of casino within its territorial jurisdiction, no
MAYOR PABLO P. MAGTAJAS & THE CITY OF CAGAYAN DE ORO, business permit shall be issued to any person, partnership or
petitioners, corporation for the operation of casino within the city limits.
vs.
PRYCE PROPERTIES CORPORATION, INC. & PHILIPPINE AMUSEMENT Sec. 2. That it shall be a violation of existing business
AND GAMING CORPORATION, respondents. permit by any persons, partnership or corporation to use its
business establishment or portion thereof, or allow the use
Aquilino G. Pimentel, Jr. and Associates for petitioners. thereof by others for casino operation and other gambling
activities.
R.R. Torralba & Associates for private respondent.
Sec. 3. PENALTIES. Any violation of such existing
business permit as defined in the preceding section shall
suffer the following penalties, to wit:

CRUZ, J.: a) Suspension of the

business permit for sixty
There was instant opposition when PAGCOR announced the opening of a (60) days for the first
casino in Cagayan de Oro City. Civic organizations angrily denounced the offense and a fine of
project. The religious elements echoed the objection and so did the women's P1,000.00/day
groups and the youth. Demonstrations were led by the mayor and the city
legislators. The media trumpeted the protest, describing the casino as an b) Suspension of the
affront to the welfare of the city. business permit for Six (6)
months for the second
The trouble arose when in 1992, flush with its tremendous success in several offense, and a fine of
cities, PAGCOR decided to expand its operations to Cagayan de Oro City. P3,000.00/day
To this end, it leased a portion of a building belonging to Pryce Properties
Corporation, Inc., one of the herein private respondents, renovated and c) Permanent revocation of
equipped the same, and prepared to inaugurate its casino there during the the business permit and
Christmas season. imprisonment of One (1)
year, for the third and
The reaction of the Sangguniang Panlungsod of Cagayan de Oro City was subsequent offenses.
swift and hostile. On December 7, 1992, it enacted Ordinance No. 3353
reading as follows: Sec. 4. This Ordinance shall take effect ten (10) days
from publication thereof.
ORDINANCE NO. 3353
Nor was this all. On January 4, 1993, it adopted a sterner Ordinance No.
AN ORDINANCE PROHIBITING THE ISSUANCE OF 3375-93 reading as follows:
BUSINESS PERMIT AND CANCELLING EXISTING
BUSINESS PERMIT TO ANY ESTABLISHMENT FOR THE ORDINANCE NO. 3375-93
USING AND ALLOWING TO BE USED ITS PREMISES OR
PORTION THEREOF FOR THE OPERATION OF CASINO.
AN ORDINANCE PROHIBITING THE OPERATION OF
CASINO AND PROVIDING PENALTY FOR VIOLATION
BE IT ORDAINED by the Sangguniang Panlungsod of the THEREFOR.
City of Cagayan de Oro, in session assembled that:
WHEREAS, the City Council established a policy as early as
1990 against CASINO under its Resolution No. 2295;
WHEREAS, on October 14, 1992, the City Council passed
another Resolution No. 2673, reiterating its policy against
the establishment of CASINO;
WHEREAS, subsequently, thereafter, it likewise passed
Ordinance No. 3353, prohibiting the issuance of Business
Permit and to cancel existing Business Permit to any
establishment for the using and allowing to be used its
premises or portion thereof for the operation of CASINO;
WHEREAS, under Art. 3, section 458, No. (4), sub
paragraph VI of the Local Government Code of 1991 (Rep.
Act 7160) and under Art. 99, No. (4), Paragraph VI of the
implementing rules of the Local Government Code, the City
Council as the Legislative Body shall enact measure to
suppress any activity inimical to public morals and general
welfare of the people and/or regulate or prohibit such activity
pertaining to amusement or entertainment in order to protect
social and moral welfare of the community;
NOW THEREFORE,
BE IT ORDAINED by the City Council in session duly
assembled that:
Sec. 1. The operation of gambling CASINO in the City of
Cagayan de Oro is hereby prohibited.
Sec. 2. Any violation of this Ordinance shall be subject to
the following penalties:
a) Administrative fine of P5,000.00 shall be imposed against
the proprietor, partnership or corporation undertaking the
operation, conduct, maintenance of gambling CASINO in the
City and closure thereof;
b) Imprisonment of not less than six (6) months nor more
than one (1) year or a fine in the amount of P5,000.00 or
both at the discretion of the court against the manager,
supervisor, and/or any person responsible in the
establishment, conduct and maintenance of gambling
CASINO.
Sec. 3. This Ordinance shall take effect ten (10) days
after its publication in a local newspaper of general
circulation.
Pryce assailed the ordinances before the Court of Appeals, where it was
joined by PAGCOR as intervenor and supplemental petitioner. Their
challenge succeeded. On March 31, 1993, the Court of Appeals declared the
ordinances invalid and issued the writ prayed for to prohibit their
enforcement. 1 Reconsideration of this decision was denied on July 13,
1993. 2
Cagayan de Oro City and its mayor are now before us in this petition for
review under Rule 45 of the Rules of Court. 3 They aver that the respondent
Court of Appeals erred in holding that:
1. Under existing laws, the Sangguniang Panlungsod of the
City of Cagayan de Oro does not have the power and
authority to prohibit the establishment and operation of a
PAGCOR gambling casino within the City's territorial limits.
2. The phrase "gambling and other prohibited games of
chance" found in Sec. 458, par. (a), sub-par. (1) (v) of
R.A. 7160 could only mean "illegal gambling."
3. The questioned Ordinances in effect annul P.D. 1869 and
are therefore invalid on that point.
4. The questioned Ordinances are discriminatory to casino
and partial to cockfighting and are therefore invalid on that
point.
5. The questioned Ordinances are not reasonable, not
consonant with the general powers and purposes of the
instrumentality concerned and inconsistent with the laws or
policy of the State.
6. It had no option but to follow the ruling in the case of
Basco, et al. v. PAGCOR, G.R. No. 91649, May 14, 1991,
197 SCRA 53 in disposing of the issues presented in this
present case.
PAGCOR is a corporation created directly by P.D. 1869 to help centralize
and regulate all games of chance, including casinos on land and sea within
the territorial jurisdiction of the Philippines. In Basco v. Philippine
Amusements and Gaming Corporation, 4 this Court sustained the
constitutionality of the decree and even cited the benefits of the entity to the appropriate penalties for
national economy as the third highest revenue-earner in the government, habitual drunkenness in
next only to the BIR and the Bureau of Customs. public places, vagrancy,
mendicancy, prostitution,
Cagayan de Oro City, like other local political subdivisions, is empowered to establishment and
enact ordinances for the purposes indicated in the Local Government Code. maintenance of houses of ill
It is expressly vested with the police power under what is known as the repute, gambling and other
General Welfare Clause now embodied in Section 16 as follows: prohibited games of chance,
fraudulent devices and
ways to obtain money or
Sec. 16. General Welfare. Every local government unit
property, drug addiction,
shall exercise the powers expressly granted, those
maintenance of drug dens,
necessarily implied therefrom, as well as powers necessary,
drug pushing, juvenile
appropriate, or incidental for its efficient and effective
governance, and those which are essential to the promotion delinquency, the printing,
of the general welfare. Within their respective territorial distribution or exhibition of
obscene or pornographic
jurisdictions, local government units shall ensure and
materials or publications,
support, among other things, the preservation and
and such other activities
enrichment of culture, promote health and safety, enhance
inimical to the welfare and
the right of the people to a balanced ecology, encourage and
support the development of appropriate and self-reliant morals of the inhabitants of
scientific and technological capabilities, improve public the city;
morals, enhance economic prosperity and social justice,
promote full employment among their residents, maintain This section also authorizes the local government units to regulate properties
peace and order, and preserve the comfort and convenience and businesses within their territorial limits in the interest of the general
of their inhabitants. welfare. 5

In addition, Section 458 of the said Code specifically declares that:
Sec. 458. Powers, Duties, Functions and Compensation.
(a) The Sangguniang Panlungsod, as the legislative body
of the city, shall enact ordinances, approve resolutions and
appropriate funds for the general welfare of the city and its
inhabitants pursuant to Section 16 of this Code and in the
proper exercise of the corporate powers of the city as
provided for under Section 22 of this Code, and shall:
(1) Approve ordinances and pass resolutions necessary for
an efficient and effective city government, and in this
connection, shall:
xxx xxx xxx
(v) Enact ordinances
intended to prevent,
suppress and impose
The petitioners argue that by virtue of these provisions, the Sangguniang
Panlungsod may prohibit the operation of casinos because they involve
games of chance, which are detrimental to the people. Gambling is not
allowed by general law and even by the Constitution itself. The legislative
power conferred upon local government units may be exercised over all
kinds of gambling and not only over "illegal gambling" as the respondents
erroneously argue. Even if the operation of casinos may have been permitted
under P.D. 1869, the government of Cagayan de Oro City has the authority
to prohibit them within its territory pursuant to the authority entrusted to it by
the Local Government Code.
It is submitted that this interpretation is consonant with the policy of local
autonomy as mandated in Article II, Section 25, and Article X of the
Constitution, as well as various other provisions therein seeking to
strengthen the character of the nation. In giving the local government units
the power to prevent or suppress gambling and other social problems, the
Local Government Code has recognized the competence of such
communities to determine and adopt the measures best expected to promote
the general welfare of their inhabitants in line with the policies of the State.
The petitioners also stress that when the Code expressly authorized the local
government units to prevent and suppress gambling and other prohibited
games of chance, like craps, baccarat, blackjack and roulette, it meant all
forms of gambling without distinction. Ubi lex non distinguit, nec nos
distinguere debemos. 6 Otherwise, it would have expressly excluded from
the scope of their power casinos and other forms of gambling authorized by
special law, as it could have easily done. The fact that it did not do so simply
means that the local government units are permitted to prohibit all kinds of
gambling within their territories, including the operation of casinos.
The adoption of the Local Government Code, it is pointed out, had the effect
of modifying the charter of the PAGCOR. The Code is not only a later
enactment than P.D. 1869 and so is deemed to prevail in case of
inconsistencies between them. More than this, the powers of the PAGCOR
under the decree are expressly discontinued by the Code insofar as they do
not conform to its philosophy and provisions, pursuant to Par. (f) of its
repealing clause reading as follows:
(f) All general and special laws, acts, city charters, decrees,
executive orders, proclamations and administrative
regulations, or part or parts thereof which are inconsistent
with any of the provisions of this Code are hereby repealed
or modified accordingly.
It is also maintained that assuming there is doubt regarding the effect of the
Local Government Code on P.D. 1869, the doubt must be resolved in favor
of the petitioners, in accordance with the direction in the Code calling for its
liberal interpretation in favor of the local government units. Section 5 of the
Code specifically provides:
Sec. 5. Rules of Interpretation. In the interpretation of the
provisions of this Code, the following rules shall apply:
(a) Any provision on a power of a local government unit shall
be liberally interpreted in its favor, and in case of doubt, any
question thereon shall be resolved in favor of devolution of
powers and of the lower local government unit. Any fair and
reasonable doubt as to the existence of the power shall be
interpreted in favor of the local government unit concerned;
xxx xxx xxx
(c) The general welfare provisions in this Code shall be
liberally interpreted to give more powers to local government
units in accelerating economic development and upgrading
the quality of life for the people in the community; . . .
(Emphasis supplied.)
Finally, the petitioners also attack gambling as intrinsically harmful and cite
various provisions of the Constitution and several decisions of this Court
expressive of the general and official disapprobation of the vice. They invoke
the State policies on the family and the proper upbringing of the youth and,
as might be expected, call attention to the old case of U.S. v. Salaveria,7
which sustained a municipal ordinance prohibiting the playing of panguingue.
The petitioners decry the immorality of gambling. They also impugn the
wisdom of P.D. 1869 (which they describe as "a martial law instrument") in
creating PAGCOR and authorizing it to operate casinos "on land and sea
within the territorial jurisdiction of the Philippines."
This is the opportune time to stress an important point.
The morality of gambling is not a justiciable issue. Gambling is not illegal per
se. While it is generally considered inimical to the interests of the people,
there is nothing in the Constitution categorically proscribing or penalizing
gambling or, for that matter, even mentioning it at all. It is left to Congress to
deal with the activity as it sees fit. In the exercise of its own discretion, the
legislature may prohibit gambling altogether or allow it without limitation or it
may prohibit some forms of gambling and allow others for whatever reasons
it may consider sufficient. Thus, it has prohibited jueteng and monte but
permits lotteries, cockfighting and horse-racing. In making such choices,
Congress has consulted its own wisdom, which this Court has no authority to
review, much less reverse. Well has it been said that courts do not sit to
resolve the merits of conflicting theories. 8 That is the prerogative of the
political departments. It is settled that questions regarding the wisdom,
morality, or practicibility of statutes are not addressed to the judiciary but may
be resolved only by the legislative and executive departments, to which the
function belongs in our scheme of government. That function is exclusive.
Whichever way these branches decide, they are answerable only to their
own conscience and the constituents who will ultimately judge their acts, and
not to the courts of justice.
The only question we can and shall resolve in this petition is the validity of
Ordinance No. 3355 and Ordinance No. 3375-93 as enacted by the
Sangguniang Panlungsod of Cagayan de Oro City. And we shall do so only
by the criteria laid down by law and not by our own convictions on the
propriety of gambling.
The tests of a valid ordinance are well established. A long line of decisions 9
has held that to be valid, an ordinance must conform to the following
substantive requirements:
 1) It must not contravene the constitution or any statute.
2) It must not be unfair or oppressive.
3) It must not be partial or discriminatory.
4) It must not prohibit but may regulate trade.
5) It must be general and consistent with public policy.
6) It must not be unreasonable.
We begin by observing that under Sec. 458 of the Local Government Code,
local government units are authorized to prevent or suppress, among others,
"gambling and other prohibited games of chance." Obviously, this provision
excludes games of chance which are not prohibited but are in fact permitted
by law. The petitioners are less than accurate in claiming that the Code could
have excluded such games of chance but did not. In fact it does. The
language of the section is clear and unmistakable. Under the rule of noscitur
a sociis, a word or phrase should be interpreted in relation to, or given the
same meaning of, words with which it is associated. Accordingly, we
conclude that since the word "gambling" is associated with "and other
prohibited games of chance," the word should be read as referring to only
illegal gambling which, like the other prohibited games of chance, must be
prevented or suppressed.
We could stop here as this interpretation should settle the problem quite
conclusively. But we will not. The vigorous efforts of the petitioners on behalf
of the inhabitants of Cagayan de Oro City, and the earnestness of their
advocacy, deserve more than short shrift from this Court.
The apparent flaw in the ordinances in question is that they contravene P.D.
1869 and the public policy embodied therein insofar as they prevent
PAGCOR from exercising the power conferred on it to operate a casino in
Cagayan de Oro City. The petitioners have an ingenious answer to this
misgiving. They deny that it is the ordinances that have changed P.D. 1869
for an ordinance admittedly cannot prevail against a statute. Their theory is
that the change has been made by the Local Government Code itself, which
was also enacted by the national lawmaking authority. In their view, the
decree has been, not really repealed by the Code, but merely "modified pro
tanto" in the sense that PAGCOR cannot now operate a casino over the
objection of the local government unit concerned. This modification of P.D.
1869 by the Local Government Code is permissible because one law can
change or repeal another law.
It seems to us that the petitioners are playing with words. While insisting that
the decree has only been "modified pro tanto," they are actually arguing that
it is already dead, repealed and useless for all intents and purposes because
the Code has shorn PAGCOR of all power to centralize and regulate casinos.
Strictly speaking, its operations may now be not only prohibited by the local
government unit; in fact, the prohibition is not only discretionary but
mandated by Section 458 of the Code if the word "shall" as used therein is to
be given its accepted meaning. Local government units have now no choice
but to prevent and suppress gambling, which in the petitioners' view includes
both legal and illegal gambling. Under this construction, PAGCOR will have
no more games of chance to regulate or centralize as they must all be
prohibited by the local government units pursuant to the mandatory duty
imposed upon them by the Code. In this situation, PAGCOR cannot continue
to exist except only as a toothless tiger or a white elephant and will no longer
be able to exercise its powers as a prime source of government revenue
through the operation of casinos.
It is noteworthy that the petitioners have cited only Par. (f) of the repealing
clause, conveniently discarding the rest of the provision which painstakingly
mentions the specific laws or the parts thereof which are repealed (or
modified) by the Code. Significantly, P.D. 1869 is not one of them. A reading
of the entire repealing clause, which is reproduced below, will disclose the
omission:
Sec. 534. Repealing Clause. (a) Batas Pambansa Blg.
337, otherwise known as the "Local Government Code,"
Executive Order No. 112 (1987), and Executive Order No.
319 (1988) are hereby repealed.
(b) Presidential Decree Nos. 684, 1191, 1508 and such other
decrees, orders, instructions, memoranda and issuances
related to or concerning the barangay are hereby repealed.
(c) The provisions of Sections 2, 3, and 4 of Republic Act
No. 1939 regarding hospital fund; Section 3, a (3) and b (2)
of Republic Act. No. 5447 regarding the Special Education
Fund; Presidential Decree No. 144 as amended by
Presidential Decree Nos. 559 and 1741; Presidential Decree
No. 231 as amended; Presidential Decree No. 436 as
amended by Presidential Decree No. 558; and Presidential
Decree Nos. 381, 436, 464, 477, 526, 632, 752, and 1136
are hereby repealed and rendered of no force and effect.
(d) Presidential Decree No. 1594 is hereby repealed insofar
as it governs locally-funded projects.
 (e) The following provisions are hereby repealed or
amended insofar as they are inconsistent with the provisions
of this Code: Sections 2, 16, and 29 of Presidential Decree
No. 704; Sections 12 of Presidential Decree No. 87, as
amended; Sections 52, 53, 66, 67, 68, 69, 70, 71, 72, 73,
and 74 of Presidential Decree No. 463, as amended; and
Section 16 of Presidential Decree No. 972, as amended, and
(f) All general and special laws, acts, city charters, decrees,
executive orders, proclamations and administrative
regulations, or part or parts thereof which are inconsistent
with any of the provisions of this Code are hereby repealed
or modified accordingly.
Furthermore, it is a familiar rule that implied repeals are not lightly presumed
in the absence of a clear and unmistakable showing of such intention. In
Lichauco & Co. v. Apostol, 10 this Court explained:
The cases relating to the subject of repeal by implication all
proceed on the assumption that if the act of later date clearly
reveals an intention on the part of the lawmaking power to
abrogate the prior law, this intention must be given effect;
but there must always be a sufficient revelation of this
intention, and it has become an unbending rule of statutory
construction that the intention to repeal a former law will not
be imputed to the Legislature when it appears that the two
statutes, or provisions, with reference to which the question
arises bear to each other the relation of general to special.
There is no sufficient indication of an implied repeal of P.D. 1869. On the
contrary, as the private respondent points out, PAGCOR is mentioned as the
source of funding in two later enactments of Congress, to wit, R.A. 7309,
creating a Board of Claims under the Department of Justice for the benefit of
victims of unjust punishment or detention or of violent crimes, and R.A. 7648,
providing for measures for the solution of the power crisis. PAGCOR
revenues are tapped by these two statutes. This would show that the
PAGCOR charter has not been repealed by the Local Government Code but
has in fact been improved as it were to make the entity more responsive to
the fiscal problems of the government.
It is a canon of legal hermeneutics that instead of pitting one statute against
another in an inevitably destructive confrontation, courts must exert every
effort to reconcile them, remembering that both laws deserve a becoming
respect as the handiwork of a coordinate branch of the government. On the
assumption of a conflict between P.D. 1869 and the Code, the proper action
is not to uphold one and annul the other but to give effect to both by
harmonizing them if possible. This is possible in the case before us. The
proper resolution of the problem at hand is to hold that under the Local
Government Code, local government units may (and indeed must) prevent
and suppress all kinds of gambling within their territories except only those
allowed by statutes like P.D. 1869. The exception reserved in such laws must
be read into the Code, to make both the Code and such laws equally
effective and mutually complementary.
This approach would also affirm that there are indeed two kinds of gambling,
to wit, the illegal and those authorized by law. Legalized gambling is not a
modern concept; it is probably as old as illegal gambling, if not indeed more
so. The petitioners' suggestion that the Code authorizes them to prohibit all
kinds of gambling would erase the distinction between these two forms of
gambling without a clear indication that this is the will of the legislature.
Plausibly, following this theory, the City of Manila could, by mere ordinance,
prohibit the Philippine Charity Sweepstakes Office from conducting a lottery
as authorized by R.A. 1169 and B.P. 42 or stop the races at the San Lazaro
Hippodrome as authorized by R.A. 309 and R.A. 983.
In light of all the above considerations, we see no way of arriving at the
conclusion urged on us by the petitioners that the ordinances in question are
valid. On the contrary, we find that the ordinances violate P.D. 1869, which
has the character and force of a statute, as well as the public policy
expressed in the decree allowing the playing of certain games of chance
despite the prohibition of gambling in general.
The rationale of the requirement that the ordinances should not contravene a
statute is obvious. Municipal governments are only agents of the national
government. Local councils exercise only delegated legislative powers
conferred on them by Congress as the national lawmaking body. The
delegate cannot be superior to the principal or exercise powers higher than
those of the latter. It is a heresy to suggest that the local government units
can undo the acts of Congress, from which they have derived their power in
the first place, and negate by mere ordinance the mandate of the statute.
Municipal corporations owe their origin to, and derive their
powers and rights wholly from the legislature. It breathes into
them the breath of life, without which they cannot exist. As it
creates, so it may destroy. As it may destroy, it may abridge
and control. Unless there is some constitutional limitation on
the right, the legislature might, by a single act, and if we can
suppose it capable of so great a folly and so great a wrong,
sweep from existence all of the municipal corporations in the
State, and the corporation could not prevent it. We know of
no limitation on the right so far as to the corporation
 themselves are concerned. They are, so to phrase it, the WHEREFORE, the petition is DENIED and the challenged decision of the
mere tenants at will of the legislature. 11 respondent Court of Appeals is AFFIRMED, with costs against the
petitioners. It is so ordered.
This basic relationship between the national legislature and the local
government units has not been enfeebled by the new provisions in the
Constitution strengthening the policy of local autonomy. Without meaning to
detract from that policy, we here confirm that Congress retains control of the
local government units although in significantly reduced degree now than
under our previous Constitutions. The power to create still includes the power
to destroy. The power to grant still includes the power to withhold or recall.
True, there are certain notable innovations in the Constitution, like the direct
conferment on the local government units of the power to tax, 12 which
cannot now be withdrawn by mere statute. By and large, however, the
national legislature is still the principal of the local government units, which
cannot defy its will or modify or violate it.

The Court understands and admires the concern of the petitioners for the
welfare of their constituents and their apprehensions that the welfare of
Cagayan de Oro City will be endangered by the opening of the casino. We
share the view that "the hope of large or easy gain, obtained without special
effort, turns the head of the workman" 13 and that "habitual gambling is a
cause of laziness and ruin." 14 In People v. Gorostiza, 15 we declared: "The
social scourge of gambling must be stamped out. The laws against gambling
must be enforced to the limit." George Washington called gambling "the child
of avarice, the brother of iniquity and the father of mischief." Nevertheless,
we must recognize the power of the legislature to decide, in its own wisdom,
to legalize certain forms of gambling, as was done in P.D. 1869 and impliedly
affirmed in the Local Government Code. That decision can be revoked by
this Court only if it contravenes the Constitution as the touchstone of all
official acts. We do not find such contravention here.

We hold that the power of PAGCOR to centralize and regulate all games of
chance, including casinos on land and sea within the territorial jurisdiction of
the Philippines, remains unimpaired. P.D. 1869 has not been modified by the
Local Government Code, which empowers the local government units to
prevent or suppress only those forms of gambling prohibited by law.

Casino gambling is authorized by P.D. 1869. This decree has the status of a
statute that cannot be amended or nullified by a mere ordinance. Hence, it
was not competent for the Sangguniang Panlungsod of Cagayan de Oro City
to enact Ordinance No. 3353 prohibiting the use of buildings for the operation
of a casino and Ordinance No. 3375-93 prohibiting the operation of casinos.
For all their praiseworthy motives, these ordinances are contrary to P.D.
1869 and the public policy announced therein and are therefore ultra vires
and void.
G.R. No. 111511 October 5, 1993
ENRIQUE T. GARCIA, ET AL., petitioners,
vs.
COMMISSION ON ELECTIONS and LUCILA PAYUMO, ET AL.,
respondents.
Alfonso M. Cruz Law Offices for petitioners.
Romulo C. Felizmea, Crisostomo Banzon and Horacio Apostol for private
respondents.
PUNO, J.:
The EDSA revolution of 1986 restored the reality that the people's might is
not a myth. The 1987 Constitution then included people power as an article
of faith and Congress was mandated to p ass laws for its effective exercise.
The Local Government Code of 1991 was enacted providing for two (2)
modes of initiating the recall from office of local elective officials who appear
to have lost the confidence of the electorate. One of these modes is recall
through the initiative of a preparatory recall assembly. In the case at bench,
petitioners assail this mode of initiatory recall as unconstitutional. The
challenge cannot succeed.
We shall first unfurl the facts.
Petitioner Enrique T. Garcia was elected governor of the province of Bataan
in the May 11, 1992 elections. In the early evening of July 1993, some
mayors, vice-mayors and members of the Sangguniang Bayan of the twelve
(12) municipalities of the province met at the National Power Corporation
compound in Bagac, Bataan. At about 12:30 A.M of the following day, July 2,
1993, they proceeded to the Bagac town plaza where they constituted
themselves into a Preparatory Recall Assembly to initiate the recall election
of petitioner Garcia. The mayor of Mariveles, Honorable Oscar, de los Reyes,
and the mayor of Dinalupihan, the Honorable Lucila Payumo, were chosen
as Presiding Officer and Secretary of the Assembly, respectively. Thereafter,
the Vice-Mayor of Limay, the Honorable Ruben Roque, was recognized and
he moved that a resolution be passed for the recall of the petitioner on the
ground of "loss of confidence."1 The motion was "unanimously seconded."2
The resolution states:
RESOLUTION NO. 1
Whereas, the majority of all the members of the Preparatory
Recall Assembly in the Province of Bataan have voluntarily
constituted themselves for the purpose of the recall of the
incumbent provincial governor of the province of Bataan,
Honorable Enrique T. Garcia pursuant to the provisions of
Section 70, paragraphs (a), (b) and (c) of Republic Act 7160,
otherwise known as the Local Government Code of 1991;
Whereas, the total number of all the members of the
Preparatory Recall Assembly in the province of Bataan is
One Hundred and Forty- Six (146) composed of all mayors,
vice-mayors and members of the Sangguniang Bayan of all
the 12 towns of the province of Bataan;
Whereas, the majority of all the members of the Preparatory
Recall Assembly, after a serious and careful deliberation
have decided to adopt this resolution for the recall of the
incumbent provincial governor Garcia for loss of confidence;
Now, therefore, be it resolved, as it is hereby resolved that
having lost confidence on the incumbent governor of Bataan,
Enrique T. Garcia, recall proceedings be immediately
initiated against him;
Resolved further, that copy of this resolution be furnished the
Honorable Commission on Elections, Manila and the
Provincial Election Supervisor, Balanga, Bataan.
One hundred forty-six (146) names appeared in Resolution No. 1 but only
eighty (80) carried the signatures of the members of the PRA. Of the eighty
(80) signatures, only seventy-four (74) were found genuine.3 The PRAC of
the province had a membership of one hundred forty-four (144)4 and its
majority was seventy-three (73).
On July 7, 1993, petitioners filed with the respondent COMELEC a petition to
deny due course to said Resolution No. 1. Petitioners alleged that the PRAC
failed to comply with the "substantive and procedural requirement" laid down
in Section 70 of R.A. 7160, otherwise known as the Local Government Code
of 1991. In a per curiam Resolution promulgated August 31, 1993, the
respondent COMELEC dismissed the petition and scheduled the recall
elections for the position of Governor of Bataan on October 11 , 1993.
Petitioners then filed with Us a petition for certiorari and prohibition with writ
of preliminary injunction to annul the said Resolution of the respondent
COMELEC on various grounds. They urged that section 70 of R.A. 7160
allowing recall through the initiative of the PRAC is unconstitutional because:
(1) the people have the sole and exclusive right to decide whether or not to
initiate proceedings, and (2) it violated the right of elected local public officials
belonging to the political minority to equal protection of law. They also argued
that the proceedings followed by the PRAC in passing Resolution No. I
suffered from numerous defects, the most fatal of which was the deliberate
failure to send notices of the meeting to sixty-five (65) members of the
assembly. On September 7, 1993, We required the respondents to file their
Comments within a non-extendible period of ten (10) days.5 On September
16, 1993, We set petition for hearing on September 21, 1993 at 11 A.M. After
the hearing, We granted the petition on ground that the sending of selective
notices to members of the PRAC violated the due process protection of the
Constitution and fatally flawed the enactment of Resolution No. 1. We ruled:
xxx xxx xxx
After deliberation, the Court opts not to resolve the alleged
constitutional infirmity of sec. 70 of R.A. No. 7160 for its
resolution is not unavoidable to decide the merits of the
petition. The petition can be decided on the equally
fundamental issues of: (1) whether or not all the members of
the Preparatory Recall Assembly were notified of its
meeting; and (2) assuming lack of notice, whether or not it
would vitiate the proceedings of the assembly including its
Resolution No. 1.
The failure to give notice to all members of the assembly,
especially to the members known to be political allies of
petitioner Garcia was admitted by both counsels of the
respondents. They did not deny that only those inclined to
agree with the resolution of recall were notified as a matter
of political strategy and security. They justified these
selective notices on the ground that the law does not
specifically mandate the giving of notice.
We reject this submission of the respondents. The due
process clause of the Constitution requiring notice as an
element of fairness is inviolable and should always be
considered as part and parcel of every law in case of its
silence. The need for notice to all the members of the
assembly is also imperative for these members represent
the different sectors of the electorate of Bataan. To the
extent that they are not notified of the meeting of the
assembly, to that extent is the sovereign voice of the people
they represent nullified. The resolution to recall should
articulate the majority will of the members of the assembly
but the majority will can be genuinely determined only after
all the members of the assembly have been given a fair
opportunity to express the will of their constituents. Needless
to stress, the requirement of notice is indispensable in
determining the collective wisdom of the members of the
Preparatory Recall Assembly. Its non-observance is fatal to
the validity of the resolution to recall petitioner Garcia as
Governor of the province of Bataan.
The petition raises other issues that are not only prima
impressionis but also of transcendental importance to the
rightful exercise of the sovereign right of the people to recall
their elected officials. The Court shall discuss these issues in
a more extended decision.
In accord with this Resolution, it appears that on September 22, 1993, the
Honorable Mayor of Dinalupihan, Oscar de los Reyes again sent Notice of
Session to the members of the PRAC to "convene in session on September
26, 1993 at the town plaza of Balanga, Bataan at 8:30 o'clock in the
morning."6 From news reports, the PRAC convened in session and eighty-
seven (87) of its members once more passed a resolution calling for the
recall of petitioner Garcia.7 On September 27, 1993, petitioners filed with Us
a Supplemental Petition and Reiteration of Extremely Urgent Motion for a
resolution of their contention that section 70 of R.A. 7160 is unconstitutional.
We find the original Petition and the Supplemental Petition assailing the
constitutionality of section 70 of R.A. 7160 insofar as it allows a preparatory
recall assembly initiate the recall of local elective officials as bereft of merit.
Every law enjoys the presumption of validity. The presumption rests on the
respect due to the wisdom, integrity, and the patriotism of the legislative, by
which the law is passed, and the Chief Executive, by whom the law is
approved,8 For upholding the Constitution is not the responsibility of the
judiciary alone but also the duty of the legislative and executive.9 To strike
down a law as unconstitutional, there must be a clear and unequivocal
showing that what the fundamental law prohibits, the statute permits.10 The
annulment cannot be decreed on a doubtful, and arguable implication. The
universal rule of legal hermeneutics is that all reasonable doubts should be
resolved in favor of the constitutionality of a law. 11
Recall is a mode of removal of a public officer by the people before the end
of his term of office. The people's prerogative to remove a public officer is an
incident of their sovereign power and in the absence of constitutional
restraint, the power is implied in all governmental operations. Such power
has been held to be indispensable for the proper administration of public
affairs. 12 Not undeservedly, it is frequently described as a fundamental right
of the people in a representative democracy. 13
Recall is a mode of removal of elective local officials made its maiden
appearance in our 1973 Constitution.14 It was mandated in section 2 of
Article XI entitled Local Government, viz:
Sec. 2. The Batasang Pambansa shall enact a local
government code which may not thereafter be amended
except by a majority vote of all its Members, defining a more
responsive and accountable local government structure with
an effective system of recall, allocating among the different
local government units their powers, responsibilities, and
resources, and providing for the qualifications, election and
removal, term, salaries, powers, functions, and duties of
local officials, and all other matters relating to the
organization and operation of the local units. However, any
change in the existing form of local government shall not
take effect until ratified by a majority of the votes cast in a
plebiscite called for the purpose. (Emphasis supplied)
The Batasang Pambansa then enacted BP 337 entitled "The Local
Government Code of 1983." Section 54 of its Chapter 3 provided only one
mode of initiating the recall elections of local elective officials, i.e., by petition
of at least twenty-five percent (25%) of the total number of registered voters
in the local government unit concerned, viz:
Sec. 54. By Whom Exercised; Requisites. (1) The power
of recall shall be exercised by the registered voters of the
unit to which the local elective official subject to such recall
belongs.
(2) Recall shall be validly initiated only upon petition of at
least twenty-five percent (25%) of the total number of
registered voters in the local government unit concerned
based on the election in which the local official sought to be
recalled was elected.
Our legal history does not reveal any instance when this power of recall as
provided by BP 337 was exercised by our people.
In February 1986, however, our people more than exercised their right of
recall for they resorted to revolution and they booted of office the highest
elective officials of the land.
The successful use of people power to remove public officials who have
forfeited the trust of the electorate led to its firm institutionalization in the
1987 Constitution. Its Article XIII expressly recognized the Role and Rights of
People's Organizations, viz:
Sec. 15. The State shall respect the role of independent
people's 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.
People's organizations are bona fide associations of citizens
with demonstrated capacity to promote the public interest
and with identifiable leadership, membership, and structure.
Sec. 16. The right of the people and their organizations to
effective and reasonable participation at all levels of social,
political, and economic decision-making shall not be
abridged. The State shall, by laws, facilitate the
establishment of adequate consultation mechanisms.
Section 3 of its Article X also reiterated the mandate for Congress to enact a
local government code which "shall provide for a more responsive and
accountable local government structure instituted through a system of
decentralization with effective mechanisms of recall, initiative and
referendum. . .," viz :
Sec. 3. The Congress shall enact a local government code
which shall provide for a more responsible and accountable
local government structure instituted through a system of
decentralization with effective mechanisms of recall,
initiative, and referendum, allocate among the different local
government units their powers, responsibilities, and
resources, and provide for the qualifications, election,
appointment and removal, term, salaries, powers and
functions and duties of local officials, and all other matters
relating to the organization and operation of the local units.
In response to this constitutional call, Congress enacted R.A. 7160,
otherwise known as the Local Government Code of 1991, which took effect
on January 1, 1992. In this Code, Congress provided for a second mode of
initiating the recall process through a preparatory recall assembly which in
the provincial level is composed of all mayors, vice-mayors and sanggunian
members of the municipalities and component cities. We quote the pertinent
provisions of R.A. 7160, viz:
 CHAPTER 5 RECALL
Sec. 69. By Whom Exercised. The power of recall for loss
of confidence shall be exercised by the registered voters of a
local government unit to which the local elective official
subject to such recall belongs.
Sec. 70. Initiation of the Recall Process. (a) Recall may be
initiated by a preparatory recall assembly or by the
registered voters of the local government unit to which the
local elective official subject to such recall belongs.
(b) There shall be a preparatory recall assembly in every
province, city, district, and municipality which shall be
composed of the following:
(1) Provincial Level. all mayors, vice-mayors and
sanggunian members of the municipalities and component
cities;
(2) City level. All punong barangay and sangguniang
barangay members in the city;
(3) Legislative District level. In cases where sangguniang
panlalawigan members are elected by district, all elective
municipal officials in the district; in cases where sangguniang
panglungsod members are elected by district , all elective
barangay officials in the district; and
(4) Municipal level. All punong barangay and
sangguniang barangay members in the municipality.
(c) A majority of all the preparatory recall assembly members
may convene in session in a public place and initiate a recall
proceeding against any elective official in the local
government unit concerned. Recall of provincial, city, or
municipal officials shall be validly initiated through a
resolution adopted by a majority of all the members of the
preparatory recall assembly concerned during its session
called for the purpose.
(d) Recall of any elective provincial, city, municipal, or
barangay official may be validly initiated upon petition of at
least twenty-five (25) percent of the total number of
registered voters in the local government unit concerned
during the election which in the local official sought to be
recalled was elected.
Sec. 71. Election Recall Upon the filing of a valid
resolution petition for with the appropriate local office of the
Comelec, the Commission or its duly authorized
representative shall set the date of the election on recall,
which shall not be later than thirty (30) days after the filing of
the resolution or petition recall in the case of the barangay,
city, or municipal officials, forty-five (45) days in the case of
provincial officials. The official or officials sought to be
recalled shall automatically be considered as duly registered
candidate or candidates to the pertinent positions and, like
other candidates, shall be entitled to be voted upon.
Sec. 72. Effectivity of Recall. The recall of an elective
local official shall be effective only upon the election and
proclamation of a successor in the person of the candidate
receiving the highest number of votes cast during the
election on recall. Should the official sought to be recalled
receive the highest number of votes, confidence in him is
thereby affirmed, and he shall continue in office.
Sec. 73. Prohibition from Resignation. The elective local
official sought to be recalled shall not be allowed to resign
while the recall process is in progress.
Sec. 74. Limitations on Recall. (a) Any elective local
official may be the subject of a recall election only once
during his term of office for loss of confidence.
(b) No recall shall take place within one (1) year from the
date of the official's assumption to office or one (1) year
immediately preceding regular election.
A reading of the legislative history of these recall provisions will reveal that
the idea of empowering a preparatory recall assembly to initiate the recall
from office of local elective officials originated from the House of
Representatives A reading of the legislative history of these recall provisions
will reveal that the idea of empowering a preparatory recall assembly to
initiate the recall from office of local elective officials, originated from the
House of Representatives and not the Senate. 15 The legislative records
reveal there were two (2) principal reasons why this alternative mode of
initiating the recall process thru an assembly was adopted, viz: (a) to
diminish the difficulty of initiating recall thru the direct action of the people;
and (b) to cut down on its expenses. 16 Our lawmakers took note of the
undesirable fact that the mechanism initiating recall by direct action of the
electorate was utilized only once in the City of Angeles, Pampanga, but even
this lone attempt to recall the city mayor failed. Former Congressman
Wilfredo Cainglet explained that this initiatory process by direct action of the
people was too cumbersome, too expensive and almost impossible to
implement. 17 Consequently, our legislators added in the a second mode of
initiating the recall of local officials thru a preparatory recall assembly. They
brushed aside the argument that this second mode may cause instability in
the local government units due to its imagined ease.
We have belabored the genesis of our recall law for it can light up many of
the unillumined interstices of the law. In resolving constitutional disputes, We
should not be beguiled by foreign jurisprudence some of which are hardly
applicable because they have been dictated by different constitutional
settings and needs. Prescinding from this proposition, We shall now resolve
the contention of petitioners that the alternative mode of allowing a
preparatory recall assembly to initiate the process of recall is
unconstitutional.
It is first postulated by the petitioners that "the right to recall does not extend
merely to the prerogative of the electorate to reconfirm or withdraw their
confidence on the official sought to be recalled at a special election. Such
prerogative necessarily includes the sole and exclusive right to decide on
whether to initiate a recall proceedings or not." 18
We do not agree. Petitioners cannot point to any specific provision of the
Constitution that will sustain this submission. To be sure, there is nothing in
the Constitution that will remotely suggest that the people have the "sole and
exclusive right to decide on whether to initiate a recall proceeding." The
Constitution did not provide for any mode, let alone a single mode, of
initiating recall elections. 19 Neither did it prohibit the adoption of multiple
modes of initiating recall elections. The mandate given by section 3 of Article
X of the Constitution is for Congress to "enact a local government code
which shall provide for a more responsive and accountable local government
structure through a system of decentralization with effective mechanisms of
recall, initiative, and referendum . . ." By this constitutional mandate,
Congress was clearly given the power to choose the effective mechanisms of
recall as its discernment dictates. The power given was to select which
among the means and methods of initiating recall elections are effective to
carry out the judgment of the electorate. Congress was not straightjacketed
to one particular mechanism of initiating recall elections. What the
Constitution simply required is that the mechanisms of recall, whether one or
many, to be chosen by Congress should be effective. Using its
constitutionally granted discretion, Congress deemed it wise to enact an
alternative mode of initiating recall elections to supplement the former mode
of initiation by direct action of the people. Congress has made its choice as
called for by the Constitution and it is not the prerogative of this Court to
supplant this judgment. The choice may be erroneous but even then, the
remedy against a bad law is to seek its amendment or repeal by the
legislative. By the principle of separation of powers, it is the legislative that
determines the necessity, adequacy, wisdom and expediency of any law. 20
Petitioners also positive thesis that in passing Resolution 1, the Bataan
Preparatory Recall Assembly did not only initiate the process of recall but
had de facto recalled petitioner Garcia from office, a power reserved to the
people alone. To quote the exact language of the petitioners: "The initiation
of a recall through the PRA effectively shortens and ends the term of the
incumbent local officials. Precisely, in the case of Gov. Garcia, an election
was scheduled by the COMELEC on 11 October 1993 to determine who has
the right to assume the unexpired portion of his term of office which should
have been until June 1995. Having been relegated to the status of a mere
candidate for the same position of governor (by operation of law) he has,
therefore, been effectively recalled." 21 In their Extremely Urgent
Clarificatory Manifestation, 22 petitioners put the proposition more bluntly
stating that a "PRA resolution of recall is the re call itself."
Again, the contention cannot command our concurrence. Petitioners have
misconstrued the nature of the initiatory process of recall by the PRAC. They
have embraced the view that initiation by the PRAC is not initiation by the
people. This is a misimpression for initiation by the PRAC is also initiation by
the people, albeit done indirectly through their representatives. It is not
constitutionally impermissible for the people to act through their elected
representatives. Nothing less than the paramount task of drafting our
Constitution is delegated by the people to their representatives, elected
either to act as a constitutional convention or as a congressional constituent
assembly. The initiation of a recall process is a lesser act and there is no
rhyme or reason why it cannot be entrusted to and exercised by the elected
representatives of the people. More far out is petitioners' stance that a PRA
resolution of recall is the recall itself. It cannot be seriously doubted that a
PRA resolution of recall merely, starts the process. It is part of the process
but is not the whole process. This ought to be self evident for a PRA
resolution of recall that is not submitted to the COMELEC for validation will
not recall its subject official. Likewise, a PRA resolution of recall that is
rejected by the people in the election called for the purpose bears no effect
whatsoever. The initiatory resolution merely sets the stage for the official
concerned to appear before the tribunal of the people so he can justify why
he should be allowed to continue in office. Before the people render their
sovereign judgment, the official concerned remains in office but his right to
continue in office is subject to question. This is clear in section 72 of the
Local Government Code which states that "the recall of an elective local
official shall be effective only upon the election and proclamation of a
successor in the person of the candidate receiving the highest number of
votes cast during the election on recall."
We shall next settle the contention of petitioners that the disputed law infracts
the equal protection clause of the Constitution. Petitioners asseverate:
5.01.2. It denied petitioners the equal protection of the laws
for the local officials constituting the majority party can
constitute itself into a PRA and initiate the recall of a duly
elected provincial official belonging to the minority party thus
rendering ineffectual his election by popular mandate.
Relevantly, the assembly could, to the prejudice of the
minority (or even partyless) incumbent official, effectively
declare a local elective position vacant (and demand the
holding of a special election) for purely partisan political ends
regardless of the mandate of the electorate. In the case at
bar, 64 of the 74 signatories to the recall resolution have
been political opponents of petitioner Garcia, not only did
they not vote for him but they even campaigned against him
in the 1992 elections.
Petitioners' argument does not really assail the law but its possible abuse by
the members of the PRAC while exercising their right to initiate recall
proceedings. More specifically, the fear is expressed that the members of the
PRAC may inject political color in their decision as they may initiate recall
proceedings only against their political opponents especially those belonging
to the minority. A careful reading of the law, however, will ineluctably show
that it does not give an asymmetrical treatment to locally elected officials
belonging to the political minority. First to be considered is the politically
neutral composition of the preparatory recall assembly. Sec. 70 (b) of the
Code provides:
Sec. 70. Initiation of the Recall Process. (a) Recall may be
initiated by a preparatory recall assembly or by the
registered voters of the local government unit to which the
local elective official subject to such recall belongs.
(b) There shall be a preparatory recall assembly in every
province, city, district, and municipality which shall be
composed of the following:
(1) Provincial level. All mayors, vice-mayors and
sanggunian members of the municipalities and component
cities;
(2) City level. All punong barangay and sangguniang
barangay members in the city;
(3) Legislative District Level. In cases where sangguniang
panlalawigan members are elected by district, all elective
municipal officials in the district; and in cases where
sangguniang panglungsod members are elected by district,
all elective barangay officials in the district; and
(4) Municipal level. All punong barangay and
sangguniang barangay members in the municipality.
Under the law, all mayors, vice-mayors and sangguniang members of the
municipalities and component cities are made members of the preparatory
recall assembly at the provincial level. Its membership is not apportioned to
political parties. No significance is given to the political affiliation of its
members. Secondly, the preparatory recall assembly, at the provincial level
includes all the elected officials in the province concerned. Considering their
number, the greater probability is that no one political party can control its
majority. Thirdly, sec. 69 of the Code provides that the only ground to recall a
locally elected public official is loss of confidence of the people. The
members of the PRAC are in the PRAC not in representation of their political
parties but as representatives of the people. By necessary implication, loss of
confidence cannot be premised on mere differences in political party
affiliation. Indeed, our Constitution encourages multi-party system for the
existence of opposition parties is indispensable to the growth and nurture of
democratic system. Clearly then, the law as crafted cannot be faulted for
discriminating against local officials belonging to the minority.
The fear that a preparatory recall assembly may be dominated by a political
party and that it may use its power to initiate the recall of officials of opposite
political persuasions, especially those belonging to the minority, is not a
ground to strike down the law as unconstitutional. To be sure, this argument
has long been in disuse for there can be no escape from the reality that all
powers are susceptible of abuse. The mere possibility of abuse cannot,
however, infirm per se the grant of power to an individual or entity. To deny
power simply because it can be abused by the grantee is to render
government powerless and no people need an impotent government. There
is no democratic government that can operate on the basis of fear and
distrust of its officials, especially those elected by the people themselves. On
the contrary, all our laws assume that officials, whether appointed or elected,
will act in good faith and will perform the duties of their office. Such
presumption follows the solemn oath that they took after assumption of
office, to faithfully execute all our laws.
Moreover, the law instituted safeguards to assure that the initiation of the
recall process by a preparatory recall assembly will not be corrupted by
extraneous influences. As explained above, the diverse and distinct
composition of the membership of a preparatory recall assembly guarantees
that all the sectors of the electorate province shall be heard. It is for this
reason that in Our Resolution of September 21, 1993, We held that notice to
all the members of the recall assembly is a condition sine qua non to the
validity of its proceedings. The law also requires a qualified majority of all the
preparatory recall assembly members to convene in session and in a public
place. It also requires that the recall resolution by the said majority must be
adopted during its session called for the purpose. The underscored words
carry distinct legal meanings and purvey some of the parameters limiting the
power of the members of a preparatory recall assembly to initiate recall
proceedings. Needless to state, compliance with these requirements is
necessary, otherwise, there will be no valid resolution of recall which can be
given due course by the COMELEC.
Furthermore, it cannot be asserted with certitude that the members of the
Bataan preparatory recall assembly voted strictly along narrow political lines.
Neither the respondent COMELEC nor this Court made a judicial inquiry as
to the reasons that led the members of the said recall assembly to cast a
vote of lack of confidence against petitioner Garcia. That inquiry was not
undertaken for to do so would require crossing the forbidden borders of the
political thicket. Former Senator Aquilino Pimentel, Jr., a major author of the
subject law in his book The Local Government Code of 1991: The Key to
National Development, stressed the same reason why the substantive
content of a vote of lack of confidence is beyond any inquiry, thus:
There is only one ground for the recall of local government
officials: loss of confidence. This means that the people may
petition or the Preparatory Recall Assembly may resolve to
recall any local elective officials without specifying any
particular ground except loss of confidence. There is no
need for them to bring up any charge of abuse or corruption
against the local elective officials who are the subject of any
recall petition.
In the case of Evardone vs. Commission on Elections, et al.,
204 SCRA 464, 472 (1991), the Court ruled that "loss of
confidence" as a ground for recall is a political question. In
the words of the Court, "whether or not the electorate of the
municipality of Sulat has lost confidence in the incumbent
mayor is a political question.
Any assertion therefore that the members of the Bataan preparatory recall
assembly voted due to their political aversion to petitioner Garcia is at best a
surmise.
Petitioners also contend that the resolution of the members of the
preparatory recall assembly subverted the will of the electorate of the
province of Bataan who elected petitioner Garcia with a majority of 12,500
votes. Again, the contention proceeds from the erroneous premise that the
resolution of recall is the recall itself. It refuses to recognize the reality that
the resolution of recall is a mere proposal to the electorate of Bataan to
subject petitioner to a new test of faith. The proposal will still be passed upon
by the sovereign electorate of Bataan. As this judgment has yet to be
expressed, it is premature to conclude that the sovereign will of the
electorate of Bataan has been subverted. The electorate of Bataan may or
may not recall petitioner Garcia in an appropriate election. If the electorate
re-elects petitioner Garcia, then the proposal to recall him made by the
preparatory recall assembly is rejected. On the other hand, if the electorate
does not re-elect petitioner Garcia, then he has lost the confidence of the
people which he once enjoyed. The judgment will write finis to the political
controversy. For more than judgments of courts of law, the judgment of the
tribunal of the people is final for "sovereignty resides in the people and all
government authority emanates from them."
In sum, the petition at bench appears to champion the sovereignty of the
people, particularly their direct right to initiate and remove elective local
officials thru recall elections. If the petition would succeed, the result will be a
return to the previous system of recall elections which Congress found
should be improved. The alternative mode of initiating recall proceedings thru
a preparatory recall assembly is, however, an innovative attempt by
Congress to remove impediments to the effective exercise by the people of
their sovereign power to check the performance of their elected officials. The
power to determine this mode was specifically given to Congress and is not
proscribed by the Constitution.
IN VIEW WHEREOF, the original Petition and the Supplemental Petition
assailing the constitutionality of section 70 of R.A. 7160 insofar as it allows a
preparatory recall assembly to initiate the recall process are dismissed for
lack of merit. This decision is immediately executory.
SO ORDERED.
G.R. No. 154993 October 25, 2005
LUZ R. YAMANE, in her capacity as the CITY TREASURER OF MAKATI
CITY, Petitioner,
vs.
BA LEPANTO CONDOMINUM CORPORATION, Respondent.
DECISION
Tinga, J.:
Petitioner City Treasurer of Makati, Luz Yamane (City Treasurer), presents
for resolution of this Court two novel questions: one procedural, the other
substantive, yet both of obvious significance. The first pertains to the proper
mode of judicial review undertaken from decisions of the regional trial courts
resolving the denial of tax protests made by local government treasurers,
pursuant to the Local Government Code. The second is whether a local
government unit can, under the Local Government Code, impel a
condominium corporation to pay business taxes.1
While we agree with the City Treasurers position on the first issue, there
ultimately is sufficient justification for the Court to overlook what is essentially
a procedural error. We uphold respondents on the second issue. Indeed,
there are disturbing aspects in both procedure and substance that attend the
attempts by the City of Makati to flex its taxing muscle. Considering that the
tax imposition now in question has utterly no basis in law, judicial relief is
imperative. There are fewer indisputable causes for the exercise of judicial
review over the exercise of the taxing power than when the tax is based on
whim, and not on law.
The facts, as culled from the record, follow.
Respondent BA-Lepanto Condominium Corporation (the "Corporation") is a
duly organized condominium corporation constituted in accordance with the
Condominium Act,2 which owns and holds title to the common and limited
common areas of the BA-Lepanto Condominium (the "Condominium"),
situated in Paseo de Roxas, Makati City. Its membership comprises the
various unit owners of the Condominium. The Corporation is authorized,
under Article V of its Amended By-Laws, to collect regular assessments from
its members for operating expenses, capital expenditures on the common
areas, and other special assessments as provided for in the Master Deed
with Declaration of Restrictions of the Condominium.
On 15 December 1998, the Corporation received a Notice of Assessment
dated 14 December 1998 signed by the City Treasurer. The Notice of
Assessment stated that the Corporation is "liable to pay the correct city
business taxes, fees and charges," computed as totaling 1,601,013.77 for
the years 1995 to 1997.3 The Notice of Assessment was silent as to the
statutory basis of the business taxes assessed.
Through counsel, the Corporation responded with a written tax protest dated
12 February 1999, addressed to the City Treasurer. It was evident in the
protest that the Corporation was perplexed on the statutory basis of the tax
assessment.
With due respect, we submit that the Assessment has no basis as the
Corporation is not liable for business taxes and surcharges and interest
thereon, under the Makati [Revenue] Code or even under the [Local
Government] Code.
The Makati [Revenue] Code and the [Local Government] Code do not
contain any provisions on which the Assessment could be based. One might
argue that Sec. 3A.02(m) of the Makati [Revenue] Code imposes business
tax on owners or operators of any business not specified in the said code.
We submit, however, that this is not applicable to the Corporation as the
Corporation is not an owner or operator of any business in the contemplation
of the Makati [Revenue] Code and even the [Local Government] Code.4
Proceeding from the premise that its tax liability arose from Section 3A.02(m)
of the Makati Revenue Code, the Corporation proceeded to argue that under
both the Makati Code and the Local Government Code, "business" is defined
as "trade or commercial activity regularly engaged in as a means of
livelihood or with a view to profit." It was submitted that the Corporation, as a
condominium corporation, was organized not for profit, but to hold title over
the common areas of the Condominium, to manage the Condominium for the
unit owners, and to hold title to the parcels of land on which the
Condominium was located. Neither was the Corporation authorized, under its
articles of incorporation or by-laws to engage in profit-making activities. The
assessments it did collect from the unit owners were for capital expenditures
and operating expenses.5
The protest was rejected by the City Treasurer in a letter dated 4 March
1999. She insisted that the collection of dues from the unit owners was
effected primarily "to sustain and maintain the expenses of the common
areas, with the end in view [sic] of getting full appreciative living values [sic]
for the individual condominium occupants and to command better marketable
[sic] prices for those occupants" who would in the future sell their respective
units.6 Thus, she concluded since the "chances of getting higher prices for
well-managed common areas of any condominium are better and more
effective that condominiums with poor [sic] managed common areas," the
corporation activity "is a profit venture making [sic]".7
From the denial of the protest, the Corporation filed an Appeal with the
Regional Trial Court (RTC) of Makati.8 On 1 March 2000, the Makati RTC
Branch 57 rendered a Decision9 dismissing the appeal for lack of merit.
Accepting the premise laid by the City Treasurer, the RTC acknowledged, in
sadly risible language:
Herein appellant, to defray the improvements and beautification of the
common areas, collect [sic] assessments from its members. Its end view is to
get appreciate living rules for the unit owners [sic], to give an impression to
outsides [sic] of the quality of service the condominium offers, so as to allow
present owners to command better prices in the event of sale.10
With this, the RTC concluded that the activities of the Corporation fell
squarely under the definition of "business" under Section 13(b) of the Local
Government Code, and thus subject to local business taxation.11
From this Decision of the RTC, the Corporation filed a Petition for Review
under Rule 42 of the Rules of Civil Procedure with the Court of Appeals.
Initially, the petition was dismissed outright12 on the ground that only
decisions of the RTC brought on appeal from a first level court could be
elevated for review under the mode of review prescribed under Rule 42. 13
However, the Corporation pointed out in its Motion for Reconsideration that
under Section 195 of the Local Government Code, the remedy of the
taxpayer on the denial of the protest filed with the local treasurer is to appeal
the denial with the court of competent jurisdiction.14 Persuaded by this
contention, the Court of Appeals reinstated the petition.15
On 7 June 2002, the Court of Appeals Special Sixteenth Division rendered
the Decision16 now assailed before this Court. The appellate court reversed
the RTC and declared that the Corporation was not liable to pay business
taxes to the City of Makati.17 In doing so, the Court of Appeals delved into
jurisprudential definitions of profit,18 and concluded that the Corporation was
not engaged in profit. For one, it was held that the very statutory concept of a
condominium corporation showed that it was not a juridical entity intended to
make profit, as its sole purpose was to hold title to the common areas in the
condominium and to maintain the condominium.19
The Court of Appeals likewise cited provisions from the Corporations
Amended Articles of Incorporation and Amended By-Laws that, to its
estimation, established that the Corporation was not engaged in business
and the assessment collected from unit owners limited to those necessary to
defray the expenses in the maintenance of the common areas and
management the condominium.20
Upon denial of her Motion for Reconsideration,21 the City Treasurer elevated
the present Petition for Review under Rule 45. It is argued that the
Corporation is engaged in business, for the dues collected from the different
unit owners is utilized towards the beautification and maintenance of the
Condominium, resulting in "full appreciative living values" for the
condominium units which would command better market prices should they
be sold in the future. The City Treasurer likewise avers that the rationale for
business taxes is not on the income received or profit earned by the
business, but the privilege to engage in business. The fact that the
Corporation is empowered "to acquire, own, hold, enjoy, lease, operate and
maintain, and to convey sell, transfer or otherwise dispose of real or personal
property" allegedly qualifies "as incident to the fact of [the Corporations] act
of engaging in business.22
The City Treasurer also claims that the Corporation had filed the wrong mode
of appeal before the Court of Appeals when the latter filed its Petition for
Review under Rule 42. It is reasoned that the decision of the Makati RTC
was rendered in the exercise of original jurisdiction, it being the first court
which took cognizance of the case. Accordingly, with the Corporation having
pursued an erroneous mode of appeal, the RTC Decision is deemed to have
become final and executory.
First, we dispose of the procedural issue, which essentially boils down to
whether the RTC, in deciding an appeal taken from a denial of a protest by a
local treasurer under Section 195 of the Local Government Code, exercises
"original jurisdiction" or "appellate jurisdiction." The question assumes a
measure of importance to this petition, for the adoption of the position of the
City Treasurer that the mode of review of the decision taken by the RTC is
governed by Rule 41 of the Rules of Civil Procedure means that the decision
of the RTC would have long become final and executory by reason of the
failure of the Corporation to file a notice of appeal.23
There are discernible conflicting views on the issue. The first, as expressed
by the Court of Appeals, holds that the RTC, in reviewing denials of protests
by local treasurers, exercises appellate jurisdiction. This position is anchored
on the language of Section 195 of the Local Government Code which states
that the remedy of the taxpayer whose protest is denied by the local
treasurer is "to appeal with the court of competent jurisdiction."24 Apparently
though, the Local Government Code does not elaborate on how such
"appeal" should be undertaken.
The other view, as maintained by the City Treasurer, is that the jurisdiction
exercised by the RTC is original in character. This is the first time that the
position has been presented to the court for adjudication. Still, this argument
does find jurisprudential mooring in our ruling in Garcia v. De Jesus,25 where
the Court proffered the following distinction between original jurisdiction and
appellate jurisdiction: "Original jurisdiction is the power of the Court to take
judicial cognizance of a case instituted for judicial action for the first time
under conditions provided by law. Appellate jurisdiction is the authority of a
Court higher in rank to re-examine the final order or judgment of a lower
Court which tried the case now elevated for judicial review." 26
The quoted definitions were taken from the commentaries of the esteemed
Justice Florenz Regalado. With the definitions as beacon, the review taken
by the RTC over the denial of the protest by the local treasurer would fall
within that courts original jurisdiction. In short, the review is the initial judicial
cognizance of the matter. Moreover, labeling the said review as an exercise
of appellate jurisdiction is inappropriate, since the denial of the protest is not
the judgment or order of a lower court, but of a local government official.
The stringent concept of original jurisdiction may seemingly be neutered by
Rule 43 of the 1997 Rules of Civil Procedure, Section 1 of which lists a slew
of administrative agencies and quasi-judicial tribunals or their officers whose
decisions may be reviewed by the Court of Appeals in the exercise of its
appellate jurisdiction. However, the basic law of jurisdiction, Batas Pambansa
Blg. 129 (B.P. 129),27 ineluctably confers appellate jurisdiction on the Court
of Appeals over final rulings of quasi-judicial agencies, instrumentalities,
boards or commission, by explicitly using the phrase "appellate jurisdiction." 28
The power to create or characterize jurisdiction of courts belongs to the
legislature. While the traditional notion of appellate jurisdiction connotes
judicial review over lower court decisions, it has to yield to statutory
redefinitions that clearly expand its breadth to encompass even review of
decisions of officers in the executive branches of government.
Yet significantly, the Local Government Code, or any other statute for that
matter, does not expressly confer appellate jurisdiction on the part of regional
trial courts from the denial of a tax protest by a local treasurer. On the other
hand, Section 22 of B.P. 129 expressly delineates the appellate jurisdiction of
the Regional Trial Courts, confining as it does said appellate jurisdiction to
cases decided by Metropolitan, Municipal, and Municipal Circuit Trial Courts.
Unlike in the case of the Court of Appeals, B.P. 129 does not confer
appellate jurisdiction on Regional Trial Courts over rulings made by non-
judicial entities.
From these premises, it is evident that the stance of the City Treasurer is
correct as a matter of law, and that the proper remedy of the Corporation
from the RTC judgment is an ordinary appeal under Rule 41 to the Court of
Appeals. However, we make this pronouncement subject to two important
qualifications. First, in this particular case there are nonetheless significant
reasons for the Court to overlook the procedural error and ultimately uphold
the adjudication of the jurisdiction exercised by the Court of Appeals in this
case. Second, the doctrinal weight of the pronouncement is confined to
cases and controversies that emerged prior to the enactment of Republic Act
No. 9282, the law which expanded the jurisdiction of the Court of Tax
Appeals (CTA).
Republic Act No. 9282 definitively proves in its Section 7(a)(3) that the CTA
exercises exclusive appellate jurisdiction to review on appeal decisions,
orders or resolutions of the Regional Trial Courts in local tax cases original
decided or resolved by them in the exercise of their originally or appellate
jurisdiction. Moreover, the provision also states that the review is triggered
"by filing a petition for review under a procedure analogous to that provided
for under Rule 42 of the 1997 Rules of Civil Procedure."29
Republic Act No. 9282, however, would not apply to this case simply
because it arose prior to the effectivity of that law. To declare otherwise
would be to institute a jurisdictional rule derived not from express statutory
grant, but from implication. The jurisdiction of a court to take cognizance of a
case should be clearly conferred and should not be deemed to exist on mere
implications,30 and this settled rule would be needlessly emasculated should
we declare that the Corporations position is correct in law.
Be that as it may, characteristic of all procedural rules is adherence to the
precept that they should not be enforced blindly, especially if mechanical
application would defeat the higher ends that animates our civil procedure
the just, speedy and inexpensive disposition of every action and
proceeding.31 Indeed, we have repeatedly upheldand utilized ourselves
the discretion of courts to nonetheless take cognizance of petitions raised on
an erroneous mode of appeal and instead treat these petitions in the manner
as they should have appropriately been filed. 32 The Court of Appeals could
very well have treated the Corporations petition for review as an ordinary
appeal.
Moreover, we recognize that the Corporations error in elevating the RTC
decision for review via Rule 42 actually worked to the benefit of the City
Treasurer. There is wider latitude on the part of the Court of Appeals to
refuse cognizance over a petition for review under Rule 42 than it would have
over an ordinary appeal under Rule 41. Under Section 13, Rule 41, the
stated grounds for the dismissal of an ordinary appeal prior to the
transmission of the case records are when the appeal was taken out of time
or when the docket fees were not paid.33 On the other hand, Section 6, Rule
42 provides that in order that the Court of Appeals may allow due course to
the petition for review, it must first make a prima facie finding that the lower
court has committed an error that would warrant the reversal or modification
of the decision under review.34 There is no similar requirement of a prima
facie determination of error in the case of ordinary appeal, which is perfected
upon the filing of the notice of appeal in due time.35
Evidently, by employing the Rule 42 mode of review, the Corporation faced a
greater risk of having its petition rejected by the Court of Appeals as
compared to having filed an ordinary appeal under Rule 41. This was not an
error that worked to the prejudice of the City Treasurer.
We now proceed to the substantive issue, on whether the City of Makati may
collect business taxes on condominium corporations.
We begin with an overview of the power of a local government unit to impose
business taxes.
The power of local government units to impose taxes within its territorial
jurisdiction derives from the Constitution itself, which recognizes the power of
these units "to create its own sources of revenue and to levy taxes, fees, and
charges subject to such guidelines and limitations as the Congress may
provide, consistent with the basic policy of local autonomy."36 These
guidelines and limitations as provided by Congress are in main contained in
the Local Government Code of 1991 (the "Code"), which provides for
comprehensive instances when and how local government units may impose
taxes. The significant limitations are enumerated primarily in Section 133 of
the Code, which include among others, a prohibition on the imposition of
income taxes except when levied on banks and other financial institutions.37
None of the other general limitations under Section 133 find application to the
case at bar.
The most well-known mode of local government taxation is perhaps the real
property tax, which is governed by Title II, Book II of the Code, and which
bears no application in this case. A different set of provisions, found under
Title I of Book II, governs other taxes imposable by local government units,
including business taxes. Under Section 151 of the Code, cities such as
Makati are authorized to levy the same taxes fees and charges as provinces
and municipalities. It is in Article II, Title II, Book II of the Code, governing
municipal taxes, where the provisions on business taxation relevant to this
petition may be found.38
Section 143 of the Code specifically enumerates several types of business
on which municipalities and cities may impose taxes. These include
manufacturers, wholesalers, distributors, dealers of any article of commerce
of whatever nature; those engaged in the export or commerce of essential
commodities; contractors and other independent contractors; banks and
financial institutions; and peddlers engaged in the sale of any merchandise or
article of commerce. Moreover, the local sanggunian is also authorized to
impose taxes on any other businesses not otherwise specified under Section
143 which the sanggunian concerned may deem proper to tax.
The coverage of business taxation particular to the City of Makati is provided
by the Makati Revenue Code ("Revenue Code"), enacted through Municipal
Ordinance No. 92-072. The Revenue Code remains in effect as of this
writing. Article A, Chapter III of the Revenue Code governs business taxes in
Makati, and it is quite specific as to the particular businesses which are
covered by business taxes. To give a sample of the specified businesses
under the Revenue Code which are not enumerated under the Local
Government Code, we cite Section 3A.02(f) of the Code, which levies a
gross receipt tax :
(f) On contractors and other independent contractors defined in Sec.
3A.01(q) of Chapter III of this Code, and on owners or operators of business
establishments rendering or offering services such as: advertising agencies;
animal hospitals; assaying laboratories; belt and buckle shops; blacksmith
shops; bookbinders; booking officers for film exchange; booking offices for
transportation on commission basis; breeding of game cocks and other
sporting animals belonging to others; business management services;
collecting agencies; escort services; feasibility studies; consultancy services;
garages; garbage disposal contractors; gold and silversmith shops;
inspection services for incoming and outgoing cargoes; interior decorating
services; janitorial services; job placement or recruitment agencies;
landscaping contractors; lathe machine shops; management consultants not
subject to professional tax; medical and dental laboratories; mercantile
agencies; messsengerial services; operators of shoe shine stands; painting
shops; perma press establishments; rent-a-plant services; polo players;
school for and/or horse-back riding academy; real estate appraisers; real
estate brokerages; photostatic, white/blue printing, Xerox, typing, and
mimeographing services; rental of bicycles and/or tricycles, furniture, shoes,
watches, household appliances, boats, typewriters, etc.; roasting of pigs,
fowls, etc.; shipping agencies; shipyard for repairing ships for others; shops
for shearing animals; silkscreen or T-shirt printing shops; stables; travel
agencies; vaciador shops; veterinary clinics; video rentals and/or coverage
services; dancing schools/speed reading/EDP; nursery, vocational and other
schools not regulated by the Department of Education, Culture and Sports,
(DECS), day care centers; etc.39
Other provisions of the Revenue Code likewise subject hotel and restaurant
owners and operators40, real estate dealers, and lessors of real estate41 to
business taxes.
Should the comprehensive listing not prove encompassing enough, there is
also a catch-all provision similar to that under the Local Government Code.
This is found in Section 3A.02(m) of the Revenue Code, which provides:
(m) On owners or operators of any business not specified above shall pay
the tax at the rate of two percent (2%) for 1993, two and one-half percent (2
%) for 1994 and 1995, and three percent (3%) for 1996 and the years
thereafter of the gross receipts during the preceding year.42
The initial inquiry is what provision of the Makati Revenue Code does the
City Treasurer rely on to make the Corporation liable for business taxes.
Even at this point, there already stands a problem with the City Treasurers
cause of action.
Our careful examination of the record reveals a highly disconcerting fact. At
no point has the City Treasurer been candid enough to inform the
Corporation, the RTC, the Court of Appeals, or this Court for that matter, as
to what exactly is the precise statutory basis under the Makati Revenue Code
for the levying of the business tax on petitioner. We have examined all of the
pleadings submitted by the City Treasurer in all the antecedent judicial
proceedings, as well as in this present petition, and also the communications
by the City Treasurer to the Corporation which form part of the record.
Nowhere therein is there any citation made by the City Treasurer of any
provision of the Revenue Code which would serve as the legal authority for
the collection of business taxes from condominiums in Makati.
Ostensibly, the notice of assessment, which stands as the first instance the
taxpayer is officially made aware of the pending tax liability, should be
sufficiently informative to apprise the taxpayer the legal basis of the tax.
Section 195 of the Local Government Code does not go as far as to
expressly require that the notice of assessment specifically cite the provision
of the ordinance involved but it does require that it state the nature of the tax,
fee or charge, the amount of deficiency, surcharges, interests and penalties.
In this case, the notice of assessment sent to the Corporation did state that
the assessment was for business taxes, as well as the amount of the
assessment. There may have been prima facie compliance with the
requirement under Section 195. However in this case, the Revenue Code
provides multiple provisions on business taxes, and at varying rates. Hence,
we could appreciate the Corporations confusion, as expressed in its protest,
as to the exact legal basis for the tax.43 Reference to the local tax ordinance
is vital, for the power of local government units to impose local taxes is
exercised through the appropriate ordinance enacted by the sanggunian, and
not by the Local Government Code alone.44 What determines tax liability is
the tax ordinance, the Local Government Code being the enabling law for the
local legislative body.
Moreover, a careful examination of the Revenue Code shows that while
Section 3A.02(m) seems designed as a catch-all provision, Section 3A.02(f),
which provides for a different tax rate from that of the former provision, may
be construed to be of similar import. While Section 3A.02(f) is quite
exhaustive in enumerating the class of businesses taxed under the provision,
the listing, while it does not include condominium-related enterprises, ends
with the abbreviation "etc.", or "et cetera".
We do note our discomfort with the unlimited breadth and the dangerous
uncertainty which are the twin hallmarks of the words "et cetera." Certainly,
we cannot be disposed to uphold any tax imposition that derives its authority
from enigmatic and uncertain words such as "et cetera." Yet we cannot even
say with definiteness whether the tax imposed on the Corporation in this
case is based on "et cetera," or on Section 3A.02(m), or on any other
provision of the Revenue Code. Assuming that the assessment made on the
Corporation is on a provision other than Section 3A.02(m), the main legal
issue takes on a different complexion. For example, if it is based on "et
cetera" under Section 3A.02(f), we would have to examine whether the
Corporation faces analogous comparison with the other businesses listed
under that provision.
Certainly, the City Treasurer has not been helpful in that regard, as she has
been silent all through out as to the exact basis for the tax imposition which
she wishes that this Court uphold. Indeed, there is only one thing that
prevents this Court from ruling that there has been a due process violation on
account of the City Treasurers failure to disclose on paper the statutory
basis of the taxthat the Corporation itself does not allege injury arising from
such failure on the part of the City Treasurer.
We do not know why the Corporation chose not to put this issue into
litigation, though we can ultimately presume that no injury was sustained
because the City Treasurer failed to cite the specific statutory basis of the
tax. What is essential though is that the local treasurer be required to explain
to the taxpayer with sufficient particularity the basis of the tax, so as to leave
no doubt in the mind of the taxpayer as to the specific tax involved.
In this case, the Corporation seems confident enough in litigating despite the
failure of the City Treasurer to admit on what exact provision of the Revenue
Code the tax liability ensued. This is perhaps because the Corporation has
anchored its central argument on the position that the Local Government
Code itself does not sanction the imposition of business taxes against it. This
position was sustained by the Court of Appeals, and now merits our analysis.
As stated earlier, local tax on businesses is authorized under Section 143 of
the Local Government Code. The word "business" itself is defined under
Section 131(d) of the Code as "trade or commercial activity regularly
engaged in as a means of livelihood or with a view to profit."45 This definition
of "business" takes on importance, since Section 143 allows local
government units to impose local taxes on businesses other than those
specified under the provision. Moreover, even those business activities
specifically named in Section 143 are themselves susceptible to broad
interpretation. For example, Section 143(b) authorizes the imposition of
business taxes on wholesalers, distributors, or dealers in any article of
commerce of whatever kind or nature.
It is thus imperative that in order that the Corporation may be subjected to
business taxes, its activities must fall within the definition of business as
provided in the Local Government Code. And to hold that they do is to ignore
the very statutory nature of a condominium corporation.
The creation of the condominium corporation is sanctioned by Republic Act
No. 4726, otherwise known as the Condominium Act. Under the law, a
condominium is an interest in real property consisting of a separate interest
in a unit in a residential, industrial or commercial building and an undivided
interest in common, directly or indirectly, in the land on which it is located and
in other common areas of the building.46 To enable the orderly administration
over these common areas which are jointly owned by the various unit
owners, the Condominium Act permits the creation of a condominium
corporation, which is specially formed for the purpose of holding title to the
common area, in which the holders of separate interests shall automatically
be members or shareholders, to the exclusion of others, in proportion to the
appurtenant interest of their respective
units.47 The necessity of a condominium corporation has not gained
widespread acceptance48, and even is merely permissible under the
Condominium Act.49 Nonetheless, the condominium corporation has been
resorted to by many condominium projects, such as the Corporation in this
case.
In line with the authority of the condominium corporation to manage the
condominium project, it may be authorized, in the deed of restrictions, "to
make reasonable assessments to meet authorized expenditures, each
condominium unit to be assessed separately for its share of such expenses
in proportion (unless otherwise provided) to its owners fractional interest in
any common areas."50 It is the collection of these assessments from unit
owners that form the basis of the City Treasurers claim that the Corporation
is doing business.
The Condominium Act imposes several limitations on the condominium
corporation that prove crucial to the disposition of this case. Under Section
10 of the law, the
corporate purposes of a condominium corporation are limited to the holding
of the common areas, either in ownership or any other interest in real
property recognized by law; to the management of the project; and to such
other purposes as may be necessary, incidental or convenient to the
accomplishment of such purpose.51 Further, the same provision prohibits the
articles of incorporation or by-laws of the condominium corporation from
containing any provisions which are contrary to the provisions of the
Condominium Act, the enabling or master deed, or the declaration of
restrictions of the condominium project.52
We can elicit from the Condominium Act that a condominium corporation is
precluded by statute from engaging in corporate activities other than the
holding of the common areas, the administration of the condominium project,
and other acts necessary, incidental or convenient to the accomplishment of
such purposes. Neither the maintenance of livelihood, nor the procurement of
profit, fall within the scope of permissible corporate purposes of a
condominium corporation under the Condominium Act.
The Court has examined the particular Articles of Incorporation and By-Laws
of the Corporation, and these documents unmistakably hew to the limitations
contained in the Condominium Act. Per the Articles of Incorporation, the
Corporations corporate purposes are limited to: (a) owning and holding title
to the common and limited common areas in the Condominium Project; (b)
adopting such necessary measures for the protection and safeguard of the
unit owners and their property, including the power to contract for security
services and for insurance coverage on the entire project; (c) making and
adopting needful rules and regulations concerning the use, enjoyment and
occupancy of the units and common areas, including the power to fix
penalties and assessments for violation of such rules; (d) to provide for the
maintenance, repair, sanitation, and cleanliness of the common and limited
common areas; (e) to provide and contract for public utilities and other
services to the common areas; (f) to contract for the services of persons or
firms to assist in the management and operation of the Condominium
Project; (g) to discharge any lien or encumbrances upon the Condominium
Project; (h) to enforce the terms contained in the Master Deed with
Declaration of Restrictions of the Project; (i) to levy and
collect those assessments as provided in the Master Deed, in order to defray
the costs, expenses and losses of the condominium; (j) to acquire, own, hold,
enjoy, lease operate and maintain, and to convey, sell transfer, mortgage or
otherwise dispose of real or personal property in connection with the
purposes and activities of the corporation; and (k) to exercise and perform
such other powers reasonably necessary, incidental or convenient to
accomplish the foregoing purposes.53
Obviously, none of these stated corporate purposes are geared towards
maintaining a livelihood or the obtention of profit. Even though the
Corporation is empowered to levy assessments or dues from the unit
owners, these amounts collected are not intended for the incurrence of profit
by the Corporation or its members, but to shoulder the multitude of
necessary expenses that arise from the maintenance of the Condominium
Project. Just as much is confirmed by Section 1, Article V of the Amended
By-Laws, which enumerate the particular expenses to be defrayed by the
regular assessments collected from the unit owners. These would include the
salaries of the employees of the Corporation, and the cost of maintenance
and ordinary repairs of the common areas.54
The City Treasurer nonetheless contends that the collection of these
assessments and dues are "with the end view of getting full appreciative
living values" for the condominium units, and as a result, profit is obtained
once these units are sold at higher prices. The Court cites with approval the
two counterpoints raised by the Court of Appeals in rejecting this contention.
First, if any profit is obtained by the sale of the units, it accrues not to the
corporation but to the unit owner. Second, if the unit owner does obtain profit
from the sale of the corporation, the owner is already required to pay capital
gains tax on the appreciated value of the condominium unit.55
Moreover, the logic on this point of the City Treasurer is baffling. By this
rationale, every Makati City car owner may be considered as being engaged
in business, since the repairs or improvements on the car may be deemed
oriented towards appreciating the value of the car upon resale. There is an
evident distinction between persons who spend on repairs and improvements
on their personal and real property for the purpose of increasing its resale
value, and those who defray such expenses for the purpose of preserving the
property. The vast majority of persons fall under the second category, and it
would be highly specious to subject these persons to local business taxes.
The profit motive in such cases is hardly the driving factor behind such
improvements, if it were contemplated at all. Any profit that would be derived
under such circumstances would merely be incidental, if not accidental.
Besides, we shudder at the thought of upholding tax liability on the basis of
the standard of "full appreciative living values", a phrase that defies statutory
explication, commonsensical meaning, the English language, or even
definition from Google. The exercise of the power of taxation constitutes a
deprivation of property under the
due process clause,56 and the taxpayers right to due process is violated
when arbitrary or oppressive methods are used in assessing and collecting
taxes.57 The fact that the Corporation did not fall within the enumerated
classes of taxable businesses under either the Local Government Code or
the Makati Revenue Code already forewarns that a clear demonstration is
essential on the part of the City Treasurer on why the Corporation should be
taxed anyway. "Full appreciative living values" is nothing but blather in
search of meaning, and to impose a tax hinged on that standard is both
arbitrary and oppressive.
The City Treasurer also contends that the fact that the Corporation is
engaged in business is evinced by the Articles of Incorporation, which
specifically empowers the Corporation "to acquire, own, hold, enjoy, lease,
operate and maintain, and to convey, sell, transfer mortgage or otherwise
dispose of real or personal property."58 What the City Treasurer fails to add is
that every corporation
organized under the Corporation Code59 is so specifically empowered.
Section 36(7) of the Corporation Code states that every corporation
incorporated under the Code has the power and capacity "to purchase,
receive, take or grant, hold, convey, sell, lease, pledge, mortgage and
otherwise deal with such real and personal property . . . as the transaction of
the lawful business of the corporation may reasonably and necessarily
require . . . ."60 Without this power, corporations, as juridical persons, would
be deprived of the capacity to engage in most meaningful legal relations.
Again, whatever capacity the Corporation may have pursuant to its power to
exercise acts of ownership over personal and real property is limited by its
stated corporate purposes, which are by themselves further limited by the
Condominium Act. A condominium corporation, while enjoying such powers
of ownership, is prohibited by law from transacting its properties for the
purpose of gainful profit.
Accordingly, and with a significant degree of comfort, we hold that
condominium corporations are generally exempt from local business taxation
under the Local Government Code, irrespective of any local ordinance that
seeks to declare otherwise.
Still, we can note a possible exception to the rule. It is not unthinkable that
the unit owners of a condominium would band together to engage in activities
for profit under the shelter of the condominium corporation.61 Such activity
would be prohibited under the Condominium Act, but if the fact is
established, we see no reason why the condominium corporation may be
made liable by the local government unit for business taxes. Even though
such activities would be considered as ultra vires, since they are engaged in
beyond the legal capacity of the condominium corporation62, the principle of
estoppel would preclude the corporation or its officers and members from
invoking the void nature of its undertakings for profit as a means of acquitting
itself of tax liability.

Still, the City Treasurer has not posited the claim that the Corporation is
engaged in business activities beyond the statutory purposes of a
condominium corporation. The assessment appears to be based solely on
the Corporations collection of assessments from unit owners, such
assessments being utilized to defray the necessary expenses for the
Condominium Project and the common areas. There is no contemplation of
business, no orientation towards profit in this case. Hence, the assailed tax
assessment has no basis under the Local Government Code or the Makati
Revenue Code, and the insistence of the city in its collection of the void tax
constitutes an attempt at deprivation of property without due process of law.

WHEREFORE, the petition is DENIED. No costs.

SO ORDERED.
G.R. No. 133495 September 3, 1998
BENJAMIN U. BORJA, JR., petitioner,
vs.
COMMISSION ON ELECTIONS and JOSE T. CAPCO, JR., respondents.
MENDOZA, J.:
This case presents for determination the scope of the constitutional provision
barring elective local officials, with the exception of barangay officials, from
serving more than three consecutive terms. In particular, the question is
whether a vice-mayor who succeeds to the office of mayor by operation of
law and serves the remainder of the term is considered to have served a
term in that office for the purpose of the three-term limit.
Private respondent Jose T. Capco, Jr. was elected vice-mayor of Pateros on
January 18, 1988 for a term ending June 30, 1992. On September 2, 1989,
he became mayor, by operation of law, upon the death of the incumbent,
Cesar Borja. On May 11, 1992, he ran and was elected mayor for a term of
three years which ended on June 30, 1995. On May 8, 1995, he was
reelected mayor for another term of three years ending June 30, 1998.1
On March 27, 1998, private respondent Capco filed a certificate of candidacy
for mayor of Pateros relative to the May 11, 1998 elections. Petitioner
Benjamin U. Borja Jr., who was also a candidate for mayor, sought Capco's
disqualification on the theory that the latter would have already served as
mayor for three consecutive terms by June 30, 1998 and would therefore be
ineligible to serve for another term after that.
On April 30, 1998, the Second Division of the Commission on Elections ruled
in favor of petitioner and declared private respondent Capco disqualified from
running for reelection as mayor of Pateros. 2 However, on motion of private
respondent the COMELEC en banc, voting 5-2, reversed the decision and
declared Capco eligible to run for mayor in the May 11, 1998 elections. 3 The
majority stated in its decision:
In both the Constitution and the Local Government Code, the
three-term limitation refers to the term of office for which the
local official was elected. It made no reference to succession
to an office to which he was not elected. In the case before
the Commission, respondent Capco was not elected to the
position of Mayor in the January 18, 1988 local elections. He
succeeded to such office by operation of law and served for
the unexpired term of his predecessor. Consequently, such
succession into office is not counted as one (1) term for
purposes of the computation of the three-term limitation
under the Constitution and the Local Government Code.
Accordingly, private respondent was voted for in the elections. He received
16,558 votes against petitioner's 7,773 votes and was proclaimed elected by
the Municipal Board of Canvassers.
This is a petition for certiorari brought to set aside the resolution, dated My 7,
1998, of the COMELEC and to seek a declaration that private respondent is
disqualified to serve another term as mayor of Pateros, Metro Manila.
Petitioner contends that private respondent Capco's service as mayor from
September 2, 1989 to June 30, 1992 should be considered as service for one
full term, and since he thereafter served from 1992 to 1998 two more terms
as mayor, he should be considered to have served three consecutive terms
within the contemplation of Art. X, 8 of the Constitution and 43(b) of the
Local Government Code. Petitioner stresses the fact that, upon the death of
Mayor Cesar Borja on September 2, 1989, private respondent became the
mayor and thereafter served the remainder of the term. Petitioner argues that
it is irrelevant that private respondent became mayor by succession because
the purpose of the constitutional provision in limiting the number of terms
elective local officials may serve is to prevent a monopolization of political
power.
This contention will not bear analysis. Article X, 8 of the Constitution
provides:
Sec. 8. The term of office of elective local officials, except
barangay officials, which shall be determined by law, shall
be three years and no such official shall serve for more than
three consecutive terms. Voluntary renunciation of the office
for any length of time shall not be considered as an
interruption in the continuity of his service for the full term for
which he was elected.
This provision is restated in 43(b) of the Local Government Code (R.A. No.
7160):
Sec. 43. Term of Office. . . .
(b) No local elective official shall serve for more than three
(3) consecutive terms in the same position. Voluntary
renunciation of the office for any length of time shall not be
 considered as an interruption in the continuity of service for
the full term for which the elective official concerned was
elected. . . .
First, to prevent the establishment of political dynasties is not the only policy
embodied in the constitutional provision in question. The other policy is that
of enhancing the freedom of choice of the people. To consider, therefore,
only stay in office regardless of how the official concerned came to that office
whether by election or by succession by operation of law would be to
disregard one of the purposes of the constitutional provision in question.
Thus, a consideration of the historical background of Article X, 8 of the
Constitution reveals that the members of the Constitutional Commission were
as much concerned with preserving the freedom of choice of the people as
they were with preventing the monopolization of political power. Indeed, they
rejected a proposal put forth by Commissioner Edmundo F. Garcia that after
serving three consecutive terms or nine years there should be no further
reelection for local and legislative officials. Instead, they adopted the
alternative proposal of Commissioner Christian Monsod that such officials be
simply barred from running for the same position in the of the succeeding
election following the expiration of the third consecutive term. 4 Monsod
warned against "prescreening candidates [from] whom the people will
choose" as a result of the proposed absolute disqualification, considering
that the draft constitution contained provisions "recognizing people's power."
5 proportion and [rely] on their own strength to curtail power when it
Commissioner Blas F. Ople, who supported the Monsod proposal, said:
The principle involved is really whether this Commission
shall impose a temporary or a perpetual disqualification on
those who have served their terms in accordance with the
limits on consecutive service as decided by the
Constitutional Commission. I would be very wary about this
Commission exercising a sort of omnipotent power in order
to disqualify those who will already have served their terms
from perpetuating themselves in office. I think the
Commission achieves its purpose in establishing safeguards
against the excessive accumulation of power as a result of
consecutive terms. We do put a cap on consecutive service
in the case of the President, six years, in the case of the
Vice-President, unlimited; and in the case of the Senators,
one reelection. In the case of the Members of Congress,
both from the legislative districts and from the party list and
sectoral representation, this is now under discussion and
later on the policy concerning local officials will be taken up
by the Committee on Local Governments. The principle
remains the same. I think we want to prevent future
situations where, as a result of continuous service and
frequent reelections, officials from the President down to the
municipal mayor tend to develop a proprietary interest in
their positions and to accumulate those powers and
perquisites that permit them to stay on indefinitely or to
transfer these posts to members of their families in a
subsequent election. I think that is taken care of because we
put a gap on the continuity or the unbroken service of all of
these officials. But where we now decide to put these
prospective servants of the people or politicians, if we want
to use the coarser term, under a perpetual disqualification, I
have a feeling that we are taking away too much from the
people, whereas we should be giving as much to the people
as we can in terms of their own freedom of choice. . . . 6
Other commissioners went on record against "perpetually disqualifying"
elective officials who have served a certain number of terms as this would
deny the right of the people to choose. As Commissioner Yusup R. Abubakar
asked, "why should we arrogate unto ourselves the right to decide what the
people want?" 7
Commissioner Felicitas S. Aquino spoke in the same vein when she called
on her colleagues to "allow the people to exercise their own sense of
overreaches itself." 8
Commissioner Teodoro C. Bacani stressed: "Why should we not leave
[perpetual disqualification after serving a number of terms] to the premise
accepted by practically everybody here that our people are politically
mature? Should we use this assumption only when it is convenient for us,
and not when it may also lead to a freedom of choice for the people and for
politicians who may aspire to serve them longer?" 9
Two ideas thus emerge from a consideration of the proceedings of the
Constitutional Commission. The first is the notion of service of term, derived
from the concern about the accumulation of power as a result of a prolonged
stay in office. The second is the idea of election, derived from the concern
that the right of the people to choose those whom they wish to govern them
be preserved.
It is likewise noteworthy that, in discussing term limits, the drafters of the
Constitution did so on the assumption that the officials concerned were
serving by reason of election. This is clear from the following exchange in the
Constitutional Commission concerning term limits, now embodied in Art. VI,
4 and 7 of the Constitution, for members of Congress:
MR. GASCON. I would like to ask a question with regard to
the issue after the second term. We will allow the Senator to
rest for a period of time before he can run again?
MR. DAVIDE. That is correct.
MR. GASCON. And the question that we left behind before
if the Gentlemen will remember was: How long will that
period of rest be? Will it be one election which is three years
or one term which is six years?
MR. DAVIDE. If the Gentlemen will remember,
Commissioner Rodrigo expressed the view that during the
election following the expiration of the first 12 years, whether
such election will be on the third year or on the sixth year
thereafter, this particular member of the Senate can run. So,
it is not really a period of hibernation for six years. That was
the Committee's stand. 10
Indeed a fundamental tenet of representative democracy is that the people
should be allowed to choose those whom they please to govern them. 11 To
bar the election of a local official because he has already served three terms,
although the first as a result of succession by operation of law rather than
election, would therefore be to violate this principle.
Second, not only historical examination but textual analysis as well supports
the ruling of the COMELEC that Art. X, 8 contemplates service by local
officials for three consecutive terms as a result of election. The first sentence
speaks of "the term of office of elective local officials" and bars "such
official[s]" from serving for more than three consecutive terms. The second
sentence, in explaining when an elective local official may be deemed to
have served his full term of office, states that "voluntary renunciation of the
office for any length of time shall not be considered as an interruption in the
continuity of his service for the full term for which he was elected." The term
served must therefore be one "for which [the official concerned] was elected."
The purpose of this provision is to prevent a circumvention of the limitation
on the number of terms an elective local official may serve. Conversely, if he
is not serving a term for which he was elected because he is simply
continuing the service of the official he succeeds, such official cannot be
considered to have fully served the term notwithstanding his voluntary
renunciation of office prior to its expiration.
Reference is made to Commissioner Bernas' comment on Art. VI, 7, which
similarly bars members of the House of Representatives from serving for
more than three terms. Commissioner Bernas states that "if one is elected
Representative to serve the unexpired term of another, that unexpired term,
no matter how short, will be considered one term for the purpose of
computing the number of successive terms allowed." 12
This is actually based on the opinion expressed by Commissioner Davide in
answer to a query of Commissioner Suarez: "For example, a special election
is called for a Senator, and the Senator newly elected would have to serve
the unexpired portion of the term. Would that mean that serving the
unexpired portion of the term is already considered one term? So, half a
term, which is actually the correct statement, plus one term would disqualify
the Senator concerned from running? Is that the meaning of this provision on
disqualification, Madam President?" Commissioner Davide said: "Yes,
because we speak of "term," and if there is a special election, he will serve
only for the unexpired portion of that particular term plus one more term for
the Senator and two more terms for the Members of the Lower House." 13
There is a difference, however, between the case of a vice-mayor and that of
a member of the House of Representatives who succeeds another who dies,
resigns, becomes incapacitated, or is removed from office. The vice-mayor
succeeds to the mayorship by operation of law. 14 On the other hand, the
Representative is elected to fill the vacancy. 15 In a real sense, therefore,
such Representative serves a term for which he was elected. As the purpose
of the constitutional provision is to limit the right to be elected and to serve in
Congress, his service of the unexpired term is rightly counted as his first
term. Rather than refute what we believe to be the intendment of Art. X, 8
with regard to elective local officials, the case of a Representative who
succeeds another confirms the theory.
Petitioner also cites Art. VII, 4 of the Constitution which provides for
succession of the Vice-President to the Presidency in case of vacancy in that
office. After stating that "The President shall not be eligible for any
reelection," this provision says that "No person who has succeeded as
President and has served as such for more than four years shall be qualified
for election to the same office at any time." Petitioner contends that, by
analogy, the vice-mayor should likewise be considered to have served a full
term as mayor if he succeeds to the latter's office and serves for the
remainder of the term.
The framers of the Constitution included such a provision because, without it,
the Vice-President, who simply steps into the Presidency by succession,
would be qualified to run President even if he has occupied that office for
more than four years. The absence of a similar provision in Art. X, 8 on
elective local officials throws in bold relief the difference between the two
cases. It underscores the constitutional intent to cover only the terms of office
to which one may have been elected for purposes of the three-term limit on
local elective officials, disregarding for this purpose service by automatic
succession.
There is another reason why the Vice-President who succeeds to the
Presidency and serves in that office for more than four years is ineligible for
election as President. The Vice-President is elected primarily to succeed the
President in the event of the latter's death, permanent disability, removal, or
resignation. While he may be appointed to the cabinet, his becoming, so is
entirely dependent on the good graces of the President. In running for Vice-
President, he may thus be said to also seek the Presidency. For their part,
the electors likewise choose as Vice-President the candidate who they think
can fill the Presidency in the event it becomes vacant. Hence, service in the
Presidency for more than four years may rightly be considered as service for
a full term.
This is not so in the case of the vice-mayor. Under the Local Government
Code, he is the presiding officer of the sanggunian and he appoints all
officials and employees of such local assembly. He has distinct powers and
functions, succession to mayorship in the event of vacancy therein being only
one of
them. 16 It cannot be said of him, as much as of the Vice-President in the
event of a vacancy in the Presidency, that, in running for vice-mayor, he also
seeks the mayorship. His assumption of the mayorship in the event of
vacancy is more a matter of chance than of design. Hence, his service in that
office should not be counted in the application of any term limit.
To recapitulate, the term limit for elective local officials must be taken to refer
to the right to be elected as well as the right to serve in the same elective
position. Consequently, it is not enough that an individual has served three
consecutive terms in an elective local office, he must also have been elected
to the same position for the same number of times before the disqualification
can apply. This point can be made clearer by considering the following cases
or situations:
Case No. 1. Suppose A is a vice-mayor who becomes mayor
by reason of the death of the incumbent. Six months before
the next election, he resigns and is twice elected thereafter.
Can he run again for mayor in the next election?
Yes, because although he has already first served as mayor
by succession and subsequently resigned from office before
the full term expired, he has not actually served three full
terms in all for the purpose of applying the term limit. Under
Art. X, 8, voluntary renunciation of the office is not
considered as an interruption in the continuity of his service
for the full term only if the term is one "for which he was
elected." Since A is only completing the service of the term
for which the deceased and not he was elected, A cannot be
considered to have completed one term. His resignation
constitutes an interruption of the full term.
Case No. 2. Suppose B is elected mayor and, during his first
term, he is twice suspended for misconduct for a total of 1
year. If he is twice reelected after that, can he run for one
more term in the next election?
Yes, because he has served only two full terms
successively.
In both cases, the mayor is entitled to run for reelection because the two
conditions for the application of the disqualification provisions have not
concurred, namely, that the local official concerned has been elected three
consecutive times and that he has fully served three consecutive terms. In
the first case, even if the local official is considered to have served three full
terms notwithstanding his resignation before the end of the first term, the fact
remains that he has not been elected three times. In the second case, the
local official has been elected three consecutive times, but he has not fully
served three consecutive terms.
Case No. 3. The case of vice-mayor C who becomes mayor
by succession involves a total failure of the two conditions to
concur for the purpose of applying Art. X, 8. Suppose he is
twice elected after that term, is he qualified to run again in
the next election?
Yes, because he was not elected to the office of mayor in
the first term but simply found himself thrust into it by
operation of law. Neither had he served the full term
because he only continued the service, interrupted by the
death, of the deceased mayor.
To consider C in the third case to have served the first term in full and
therefore ineligible to run a third time for reelection would be not only to
falsify reality but also to unduly restrict the right of the people to choose
whom they wish to govern them. If the vice-mayor turns out to be a bad
mayor, the people can remedy the situation by simply not reelecting him for
another term. But if, on the other hand, he proves to be a good mayor, there
will be no way the people can return him to office (even if it is just the third
time he is standing for reelection) if his service of the first term is counted as
one for the purpose of applying the term limit.

To consider C as eligible for reelection would be in accord with the

understanding of the Constitutional Commission that while the people should
be protected from the evils that a monopoly of political power may bring
about, care should be taken that their freedom of choice is not unduly
curtailed.

WHEREFORE, the petition is DISMISSED.

SO ORDERED.
G.R. No. 116850 April 11, 2002
DR. LAMPA I. PANDI and DR. JARMILA B. MACACUA, petitioners,
vs.
THE COURT OF APPEALS, and DR. AMER A. SABER, respondents.
CARPIO, J.:
The Case
This is a Petition for Review on Certiorari under Rule 45 of the Rules of Court
seeking the reversal of the decision of the Court of Appeals dated April 15,
19941 and its resolution dated August 16, 1994.2 The Court of Appeals
granted the Petition for a Writ of Quo Warranto3 filed against petitioners Dr.
Lampa I. Pandi and Dr. Jarmila B. Macacua ("Pandi" and "Macacua",
respectively, for brevity) in favor of respondent Dr. Amer A. Saber ("Saber"
for brevity). The Court of Appeals declared Saber entitled to the position of
Officer-in-Charge of the Integrated Provincial Health Office-Amai Pakpak
General Hospital ("IPHO-APGH" for brevity), Lanao del Sur.
The Facts
On August 9, 1993, Macacua, in her capacity as Regional Director4 and as
Secretary5 of the Department of Health of the Autonomous Region in Muslim
Mindanao ("DOH" and "ARMM", respectively, for brevity), issued a
Memorandum designating Pandi, who was then DOH-ARMM Assistant
Regional Secretary, as Officer-in-Charge of the IPHO-APGH, Lanao del Sur.
In the same Memorandum, Macacua detailed Dr. Mamasao Sani ("Sani" for
brevity), then the provincial health officer of the IPHO-APGH, Lanao del Sur,
to the DOH-ARMM Regional Office in Cotabato City.
On September 15, 1993, Lanao del Sur Provincial Governor Mahid M.
Mutilan issued Office Order No. 07 designating Saber also as Officer-in-
Charge of the IPHO-APGH, Lanao del Sur.
On August 12, 1993, Sani filed a complaint6 with the Regional Trial Court of
Lanao del Sur, Branch 10, Marawi City challenging the August 9, 1993
Memorandum transferring him to the DOH-ARMM Regional Office in
Cotabato City, alleging that he is the holder of a permanent appointment as
provincial health officer of the IPHO-APGH, Lanao del Sur.
On October 5, 1993, Saber filed with the Court of Appeals a petition for quo
warranto with prayer for preliminary injunction, claiming that he is the lawfully
designated Officer-in-Charge of the IPHO-APGH, Lanao del Sur. On October
14, 1993, the Court of Appeals issued a temporary restraining order enjoining
Pandi from further discharging the functions and duties as Officer-in-Charge
of the IPHO-APGH, Lanao del Sur. On October 25, 1993, Pandi and
Macacua filed their comment on the petition and opposition to the application
for writ of preliminary injunction.
On October 29, 1993, then President Fidel V. Ramos issued Executive Order
No. 133 transferring the powers and functions of the Department of Health in
the region to the Regional Government of the ARMM. On November 6, 1993,
Macacua, again in her capacity as DOH-ARMM Secretary-Designate, issued
a Memorandum reiterating Pandis designation as Officer-in-Charge of the
IPHO-APGH, Lanao del Sur, as well as Sanis detail to the Regional Office of
the DOH-ARMM in Cotabato City.
On November 19, 1993, the Court of Appeals issued a writ of preliminary
injunction upon the filing by Saber of a P100,000.00 bond. On November 24,
1993, Pandi and Macacua filed a motion for reconsideration or recall of the
writ of preliminary injunction. With an offer of a P200,000.00 counter-bond,
Pandi and Macacua moved on December 13, 1993 to dissolve the writ of
preliminary injunction. The Court of Appeals denied both motions.
On December 8, 1993, Sani filed with the Court of Appeals a motion for
intervention accompanied by a complaint in intervention. Pandi, Macacua
and Saber opposed the same.
On March 21, 1994, Pandi and Macacua filed a motion seeking the dismissal
of Sabers petition, on the ground that the issues therein had become moot
and academic. Pandi and Macacua cited as reason the enactment by the
ARMM Regional Assembly of the Muslim Mindanao Autonomy Act No. 25,
otherwise known as the ARMM Local Government Code ("ARMM Local
Code" for brevity), as well as the execution of the Memorandum of
Agreement dated March 14, 1994 between the DOH of the National
Government and the ARMM Regional Government.7
On April 15, 1994, the Court of Appeals rendered the assailed decision.8 In a
resolution dated August 16, 1994, the Court of Appeals denied Pandi and
Macacuas motion for reconsideration and supplemental motion for
reconsideration of the decision.9
The Ruling of the Court of Appeals
The Court of Appeals held that Saber is the lawfully designated Officer-in-
Charge of the IPHO-APGH, Lanao del Sur. The Court of Appeals ruled that
Lanao del Sur Governor Mahid Mutilan has the power and authority to
appoint the provincial health officer under Section 47810 of the Local
Government Code of 1991 (R.A. No. 7160, the "1991 LGU Code" for brevity).
The Court of Appeals declared:
"xxx. Accordingly, health services including hospitals, which used to
be under the central authority of the Department of Health were
devolved to the local government units (Art. 25, Implementing Rules
and Regulations of the Local Government Code of 1991; Sec. 17,
RA 7160). Pertinently, Sec. 478 of RA No. 7160 makes mandatory
for provincial governments "the appointment of a health officer" and
under Article 115 of the Implementing Rules and Regulations, it is
specifically provided that the "Provincial Health Officer" is one of the
"mandatory appointive provincial officials." There is thus, no doubt in
the mind of the Court that the authority and power to appoint the
Provincial Health Officer is vested by law in the Provincial
Governor."11 (Emphasis supplied)
The Court of Appeals likewise ruled that the issuance of Executive Order No.
133, and the Memorandum of Agreement entered between the DOH of the
National Government and the ARMM pursuant to Executive Order No. 133,
did not render moot and academic the issues raised in the proceedings
before it. The Court of Appeals explained:
"xxx. Mere devolution of the powers and functions of the DOH to the
ARMM does not authorize Dr. Macacua as Secretary of the DOH-
ARMM to make the questioned designation. Sections 2, 3, 4, 5 and 7
of Executive Order 133 which provide for the transfer of certain
powers and functions of the DOH to the ARMM, speak of
administrative supervision and control and other functions which do
not in any manner relate to the power of appointment and
designation of the Provincial Health Officer, which under the law is
clearly vested in the provincial chief executive."12
Neither did the Court of Appeals give credence to Pandi and Macacuas
argument that the passage of the ARMM Local Code puts to rest the issues
in the instant case. The Court of Appeals stated:
"While Section 457 (b) and (d) of MMA Act No. 25 state that:
"(b) In addition thereto, the governor may appoint a
provincial natural resources and environment officer, a
provincial cooperative officer, a provincial architect and a
provincial information officer.
"Provided, that the governor shall submit a list of at least
three (3) qualified recommendees to the autonomous
regional government for appointment, according to Civil
Service Law to the positions of a Provincial Health Officer, a
Provincial Social Welfare and Development Officer, a
Provincial Agriculturist, a Provincial Natural Resources and
Environment Officer, and a Provincial Tourism Officer, to be
paid by regional funds.
x-x-x x-x-x x-x-x
"(d) Unless otherwise provided herein, heads of the
departments and offices shall be appointed by the governor
with the concurrence of the majority of all the sangguniang
panlalawigan members, subject to civil service law, rules and
regulations. x x x"
it is opined that the above provisions should be interpreted to
conform to or should otherwise be not contrary to the Organic Act
(RA 6734) for the Autonomous Region in Muslim Mindanao."13
The Court of Appeals maintained that the Organic Act of 1989 and the
ARMM Local Code could not prevail over the 1991 LGU Code. The Court of
Appeals interpreted Section 457 (b) and (d) of the ARMM Local Code to
mean that it is the ARMM Regional Governor, and not the Provincial
Governor, who exercises a recommendatory prerogative in the appointment
of the provincial health officer. The Court of Appeals declared:
"Section 1 of Article V (on "Powers of Government") of Republic Act
6734 provides:
"SECTION 1. The Regional Government shall exercise
powers and functions for the proper governance and
development of all the constituent units within the
Autonomous Region consistent with the constitutional policy
on regional and local autonomy and decentralization:
Provided, That nothing herein shall authorize the diminution
of the powers and functions already enjoyed by the local
government units."
Also, Section 18, Article VIII of the same Organic Act states:
"SECTION 18. Subject to the exceptions provided for in this
Organic Act, the regional Governor shall have control of all
the regional executive commissions, boards, bureaus, and
offices. He shall ensure that the laws be faithfully executed.
The Regional Governor shall exercise general supervision
 over the local government units within the Autonomous
Region: Provided, however, That nothing herein shall
authorize the diminution of the powers and functions already
enjoyed by local government units."
From the above-cited provisions of the Organic Act for ARMM, it is
clear that nothing therein should be construed to authorize and
empower the Regional Government and the Regional Governor for
that matter to diminish, much less, render nugatory the powers and
functions already enjoyed by the local government units. Inasmuch
as the local chief executive of the province already enjoys the
mandatory power to appoint the Provincial Health Officer under
Republic Act 7160, it is believed that Section 457 (b) and (d) of MMA
Act 25 was not intended to diminish the power of the Provincial
Governor to appoint/designate the Provincial Health Officer for his
province. Accordingly, Section 457 (b) merely grants to the Regional
Governor recommendatory prerogative over appointments for the
position of Provincial Health Officer."14
The Court of Appeals likewise ruled that there is nothing in Section 18,15
Chapter 5, Title IX, Book IV of the Revised Administrative Code of 1987
which explicitly or even impliedly vests in Macacua, as DOH-ARMM
Secretary, the power to make such an appointment or designation.
The Court of Appeals further ruled that Article 46516 of the 1991 LGU Code,
which limits the appointing power of the Provincial Governor to provincial
officials and employees paid mainly from provincial funds, refers to
employees whose appointments are not otherwise provided in the Code.
Since the provincial health officer is a mandatory appointive provincial officer
under Section 478 of the 1991 LGU Code, the limitation in Article 465 cannot
apply to the appointment or designation of a provincial health officer even if
his salary is paid from national or regional funds.
The Court of Appeals also found that Sanis permanent appointment is that of
"Provincial Health Officer (R-05 5th Step) in the Office of the Regional Health
Director, Regional Health Office No. XII, Cotabato City x x x." Sani was
merely on detail to the position of provincial health officer of the IPHO-APGH,
Lanao del Sur. Sani could not claim a vested right or entitlement to
permanence in that office. Moreover, the incumbent Provincial Governor of
Lanao del Sur, as the appointing authority for all positions made mandatory
in the organizational structure of the provincial government, did not appoint
or designate Sani to the position of provincial health officer. Accordingly, for
lack of merit, the Court of Appeals denied Sanis motion to intervene.
The dispositive portion of the assailed decision of the Court of Appeals
declared that:
"WHEREFORE, the Writ of Quo Warranto is GRANTED and
petitioner, Dr. Amer A. Saber, is hereby declared entitled to the
position of Officer-in-Charge of the Integrated Provincial Health
Office. The preliminary injunction heretofore issued is hereby made
permanent.
SO ORDERED."17
Hence, this petition.
The Issues
The petitioners raise the following issues:
1. WHETHER OR NOT THE COURT OF APPEALS ERRED IN
HOLDING THAT SABER IS THE LEGALLY DESIGNATED
OFFICER-IN-CHARGE OF THE IPHO-APGH, LANAO DEL SUR,
PURSUANT TO SECTION 478 OF THE 1991 LGU CODE MAKING
MANDATORY FOR PROVINCIAL GOVERNMENTS THE
APPOINTMENT OF A HEALTH OFFICER, AND VESTING IN
GOVERNOR MAHID MUTILAN OF LANAO DEL SUR THE POWER
AND AUTHORITY TO APPOINT THE PROVINCIAL HEALTH
OFFICER;
2. WHETHER OR NOT THE COURT OF APPEALS ERRED IN
HOLDING THAT EXECUTIVE ORDER NO. 133 DATED OCTOBER
29, 1993, THE ARMM LOCAL CODE, AND THE MEMORANDUM
OF AGREEMENT ENTERED INTO BETWEEN THE DEPARTMENT
OF HEALTH (NATIONAL) AND THE ARMM, DID NOT RENDER
MOOT AND ACADEMIC THE ISSUES RAISED IN THE PETITION;
3. WHETHER OR NOT THE COURT OF APPEALS ERRED IN
HOLDING THAT THE REGIONAL GOVERNOR OF THE ARMM
HAS ONLY A RECOMMENDATORY PREROGATIVE IN THE
APPOINTMENT OF PROVINCIAL HEALTH OFFICER UNDER
SECTION 457 OF THE ARMM LOCAL CODE;
4. WHETHER OR NOT THE COURT OF APPEALS ERRED IN NOT
HOLDING THAT THE ORGANIC ACT OF 1989 IS AN EXCEPTION
TO THE 1991 LGU CODE AND THAT THE FORMER PREVAILS
OVER THE LATTER;
 5. WHETHER OR NOT THE COURT OF APPEALS ERRED IN
DENYING PETITIONERS MOTION FOR RECONSIDERATION
AND SUPPLEMENTAL MOTION FOR RECONSIDERATION OF
THE DECISION IN CA-G.R. SP NO. 32242; AND
6. WHETHER OR NOT THE COURT OF APPEALS COMMITTED
GRAVE ABUSE OF DISCRETION IN APPROVING THE BOND
POSTED BY PRIVATE RESPONDENT WITHOUT AFFORDING
THE PETITIONERS OPPORTUNITY TO COMMENT ON OR
EXCEPT TO ITS SUFFICIENCY OR OF THE SURETY OR
SURETIES THEREON, AND IN ISSUING A WRIT OF
PRELIMINARY INJUNCTION WITHOUT HEARING.
The Ruling of the Court
The Court finds the petition meritorious.
All the issues raised by petitioners can be reduced into three basic questions.
First, whether an incumbent provincial health officer of Lanao del Sur can be
assigned to another province and if so, who can order such assignment.
Second, who can designate the Officer-in-Charge in the provincial health
office of Lanao del Sur - the Provincial Governor or the ARMM Secretary of
Health. Third, who is empowered to appoint the provincial health officer of
Lanao del Sur - the Provincial Governor, the Regional Governor or the
ARMM Secretary of Health.
The answers to these questions require an examination of the laws before
and after the enactment of the Organic Act of 1989. The relevant laws cover
five periods. The first period is the time prior to the enactment of the Organic
Act of 1989. The second period is the time after the enactment of the Organic
Act of 1989 but before the adoption of the 1991 LGU Code. The third period
is the time after the enactment of the 1991 LGU Code but before the
adoption of the ARMM Local Code. The fourth period is the time after the
adoption of the ARMM Local Code but before the enactment of the Organic
Act of 2001. The fifth period is the time after the enactment of the Organic
Act of 2001.
First Period: Prior to the Organic Act of 1989
Prior to the passage of the Organic Act of 1989, the law governing the
appointment of provincial health officers was found in Executive Order No.
119,18 then the charter of the Department of Health, issued on January 30,
1987 by then President Corazon C. Aquino. The provincial health office was
an agency of the Ministry of Health, and the Minister of Health was the
appointing power of provincial health officers. Section 17 of Executive Order
No. 119 provided as follows:
"Section 17. Provincial Health Office. The integrated Provincial
Health Office created under Executive Order No. 851 shall remain as
the Ministry agency in the province. It shall exercise supervision and
control over district health offices and other field units of the Ministry
in the province, except those otherwise placed under the Ministry
proper or directly under the Regional Health Office.
The Provincial Health Office shall be headed by a Provincial Health
Officer. x x x. The Provincial Health Officer and Assistant Provincial
Health Officer shall be appointed by the Minister to a region, and
their assignment to a province shall be made by the Minister on
recommendation of the Regional Director." (Emphasis supplied)
Under Section 17 of Executive Order No. 119, a provincial health officer is
appointed to "a region" and not to a province. The Minister of Health, upon
recommendation of the Regional Director, can assign the provincial health
officer to any province within the region.
The Local Government Code of 1984 (Batas Pambansa Blg. 337, or the
"1984 LGU Code" for brevity) did not include the provincial health officer as
an official of the provincial government. Section 199 of the 1984 LGU Code
stated that:
"Sec. 199. Officials of the Provincial Government. (1) There shall be
in each province a governor, a vice-governor, members of the
sangguniang panlalawigan, a provincial secretary, a provincial
treasurer, a provincial assessor, a provincial budget officer, a
provincial engineer, a provincial agriculturist and a provincial
planning and development coordinator."
The enumeration of provincial officials in Section 199 clearly excluded the
provincial health officer. Although called the provincial health officer, this
official was not a provincial government official but a national government
official appointed by the Minister of Health and paid entirely from national
funds.
Under the 1984 LGU Code, the Provincial Governor could appoint only
"heads of offices and other employees of the provincial government" whose
salaries came mainly from provincial funds, unless the law made him the
appointing power regardless of where the salaries of the appointees were
sourced. Section 203 of the 1984 LGU Code provided that:
 "Sec. 203. Provincial Governor as Chief Executive of the Province;
Powers and Duties. - (1) The governor shall be the chief executive of
the provincial government and shall exercise such powers and duties
as provided in this Code and other laws.
(2) The governor shall:
(a) x x x;
xxx
(e) Appoint the heads of offices and other employees of the
provincial government whose salaries are entirely or mainly paid out
of the provincial funds and whose appointments are not herein
otherwise provided for, and those whom he may be authorized by
law to appoint;
x x x." (Emphasis supplied)
Thus, the Minister of Health appointed all provincial health officers who were
in reality national government officials paid entirely from national funds. The
appointment of a provincial health officer was to a specific region, and the
Minister (later renamed Secretary) could assign him to any province within
the region upon recommendation of the Regional Director. This was the state
of the law immediately prior to the effectivity of the Organic Act of 1989.
Second Period: After the Organic Act of 1989
Congress enacted the Organic Act of 1989 on August 1, 1989 and the
President signed it into law on August 21, 1989. The creation of the ARMM
itself took effect on November 19, 1989 when a majority of the ARMM
residents voted in a plebiscite to create the autonomous region. Section 3,
Article III of the Organic Act of 1989 provided as follows:
"Sec. 3. The Regional Government shall adopt a policy on local
autonomy whereby regional powers shall be devolved to local
government units where appropriate: Provided, however, that until a
regional law implementing this provision is enacted, the Local
Government Code shall be applicable." (Emphasis supplied)
At the time of the effectivity of the Organic Act of 1989, the 1984 LGU Code
was the existing law governing local government units. Thus, the 1984 LGU
Code applied to the ARMM until the Regional Government adopted its own
regional local government code. This meant that provincial health officers
were not officials of the provincial government since the 1984 LGU Code did
not list the provincial health officer as a provincial government official.
Under the Organic Act of 1989, the power of the Secretary of Health to
appoint provincial health officers to a region, and to assign them to any
province within the region, was not immediately devolved to the Regional
Government. Section 4, Article XIX of the Organic Act of 1989 immediately
placed certain line agencies and offices of the national government under the
supervision and control of the Regional Government upon the organization of
the Autonomous Region following the election of the Regional Governments
first set of regional officials on February 12, 1990. However, other line
agencies and offices of the national government, including the regional
offices of the Department of Health, were not immediately placed under the
supervision and control of the Regional Government. Section 4, Article XIX of
the Organic Act of 1989 provided that:
"Sec. 4. Upon the organization of the Autonomous Region, the line
agencies and offices of the National Government dealing with local
government, social services, science and technology, labor, natural
resources, and tourism, including their personnel, equipment,
properties and budgets, shall be immediately placed under the
control and supervision of the Regional Government.
Other National Government offices and agencies in the Autonomous
Region, which are not excluded under paragraph (9), Section 2,
Article V of this Organic Act, together with their personnel,
equipment, properties and budgets, shall be placed under the control
and supervision of the Regional Government pursuant to a schedule
prescribed by the Oversight Committee mentioned in Section 3,
Article XIX of this Organic Act: Provided, however, That the transfer
of these offices and agencies and their personnel, equipment,
properties and budget shall be accomplished within six (6) years
from the organization of the Regional Government. (Emphasis
supplied)
x x x."
It was not until October 29, 1993, when then President Fidel V. Ramos
issued Executive Order No. 133, that the regional offices of the Department
of Health in the ARMM were placed under the supervision and control of the
Regional Government. Executive Order No. 133 was the operative act that
actually transferred the powers and functions of the Department of Health,
together with its regional personnel, equipment, properties, and budgets, to
the Regional Government.
Thus, until the effectivity of Executive Order No. 133, the Secretary of Health
of the National Government continued to appoint provincial health officers in
the ARMM, with the authority to assign a provincial health officer to any
province within the region. This was the state of the law after the passage of
the Organic Act of 1989 until the effectivity of Executive Order No. 133.
A few months after the effectivity of the Organic Act of 1989, the Revised
Administrative Code of 1987 took effect on November 24, 1989. The reason
for this delayed effectivity is that R.A. No. 6622 directed that "[T]his Code
shall take effect two years after its publication in the Official Gazette." The
Revised Administrative Code retained the power of the Secretary of Health to
appoint provincial health officers who remained national government officials.
Section 19, Chapter 5, Title IX, Book IV of the Revised Administrative Code
provides that:
"SEC. 19. Provincial Health Office. The Provincial Health Office shall
be the Department agency in the province. x x x.
The Provincial Health Office shall be headed by a Provincial Health
Officer. x x x. The Provincial Health Officers and Assistant Provincial
Health Officers shall be appointed by the Secretary to a region, and
their assignment to a province shall be made by the Secretary on
recommendation of the Regional Health Director."
The foregoing Section is practically a reenactment of Section 17 of Executive
Order No. 119, the former charter of the Department of Health. Nevertheless,
the Revised Administrative Code of 1987, although a later law than the
Organic Act of 1989, did not alter the terms of the devolution under the
Organic Act of 1989.
An ordinary statute, whether general or special, cannot amend an organic act
that provides for an autonomous region which under the Constitution may
only be created, and therefore changed, through a plebiscite called for the
purpose. Under Section 3, Article XVIII of the Organic Act of 1989, any
amendment to the Organic Act required the approval of a majority of the
votes cast in a plebiscite called for the purpose within the constituent units of
the ARMM. Section 3 of Article XVIII provides as follows:
"Sec 3. Any amendment to or revision of this Organic Act shall
become effective only when approved by a majority of the votes cast
in a plebiscite called for the purpose, which shall be held not earlier
than sixty (60) days or later than ninety (90) days after the approval
of such amendment or revision."
Unless this amendatory process is followed, no subsequent law can amend
or revise the Organic Act of 1989. In any event, with respect to the
appointment and assignment of provincial health officers, the Revised
Administrative Code did not change the existing law applicable to the ARMM
under the Organic Act of 1989.
The Revised Administrative Code of 1987, however, applies to the ARMM on
matters not covered by the devolution under the Organic Act of 1989. These
matters are: (a) foreign affairs; (b) national defense; (c) postal service; (d)
coinage and fiscal and monetary policies; (e) administration of justice; (f)
quarantine; (g) customs and tariff; (h) citizenship; (i) naturalization,
immigration and deportation; (j) general auditing, civil service, elections; (k)
foreign trade; (l) maritime, land and air transportation and communications
affecting areas outside of the ARMM; (m) patents, trademarks, tradenames,
and copyrights.19 Still, nothing in the Revised Administrative Code of 1987
can reduce or diminish powers and functions devolved or to be devolved to
the ARMM under the Organic Act of 1989.
Third Period: After the Local Government Code of 1991
The Local Government Code of 1991 (R.A. No. 7160, or the "1991 LGU
Code" for brevity) took effect on January 1, 1992. Unlike the 1984 LGU
Code, the 1991 LGU Code made, for the first time, the provincial health
officers one of the officials of the provincial government to be appointed by
the provincial governor if his salary came mainly from provincial funds.
Section 463 of the 1991 LGU Code states that:
"Section 463. Officials of the Provincial Government. (a) There shall
be in each province a governor, a vice-governor, members of the
sangguniang panlalawigan, a secretary to the sangguniang
panlalawigan, a provincial treasurer, a provincial assessor, a
provincial accountant, a provincial engineer, a provincial budget
officer, a provincial planning and development coordinator, a
provincial legal officer, a provincial administrator, a provincial health
officer, a provincial social welfare and development officer, a
provincial general services officer, a provincial agriculturist, and a
provincial veterinarian. x x x.
(d) Unless otherwise provided herein, heads of departments and
offices shall be appointed by the governor with the concurrence of
the majority of all the sangguniang panlalawigan members, subject
to civil service law, rules and regulations. The sangguniang
panlalawigan shall act on the appointment within fifteen (15) days
from the date of its submission; otherwise the same shall be deemed
confirmed." (Emphasis supplied)
The proviso in Section 463 (d) refers to Section 465 of the 1991 LGU Code
which limits the appointing power of the provincial governor to officials and
employees paid mainly from provincial funds. Section 465 provides as
follows:
"Section 465. The Chief Executive: Powers, Duties, Functions and
Compensation.
(a) x x x.
(b) For efficient, effective and economical governance the purpose of
which is the general welfare of the province and its inhabitants
pursuant to Section 16 of this Code, the provincial governor shall:
(1) Exercise general supervision and control over all programs,
projects, services, and activities of the provincial government, and in
this connection, shall:
(i) x x x.
x x x.
(v) Appoint all officials and employees whose salaries and wages are
wholly or mainly paid out of provincial funds and whose
appointments are not otherwise provided for in this Code, as well as
those he may be authorized by law to appoint; x x x." (Emphasis
supplied)
The 1991 LGU Code, however, although a later law like the Revised
Administrative Code of 1987, did not amend the Organic Act of 1989
because the Organic Act could only be amended through the ratification
process laid out in the Organic Act itself. Section 526 of the 1991 LGU Code
provides that:
"Section 526. Application of this Code to Local Government Units in
the Autonomous Regions. This Code shall apply to all provinces,
cities, municipalities and barangays in the autonomous regions until
such time as the regional government concerned shall have enacted
its own local government code."
Section 526, however, should apply only to autonomous regions created
after the effectivity of the 1991 LGU Code, or in the absence of a statute
governing a specific situation within a region. Otherwise, Section 526 of the
1991 LGU Code will collide directly with Section 3, Article XVIII of the
Organic Act of 1989.
Thus, even after the passage of the 1991 LGU Code, the Secretary of Health
continued to be the appointing power of provincial health officers who
remained national government officials. The Secretary of Health also
continued to exercise the authority to assign provincial health officers to any
province within the region. This situation, however, was only temporary,
arising from the need for a phased transfer of the personnel, equipment,
properties and budgets of the Department of Health in the ARMM to the
Regional Government pursuant to Section 4, Article XIX of the Organic Act of
1989.
On October 29, 1993, Executive Order No. 133 was issued, finally
transferring the powers and functions of the Department of Health in the
autonomous region to the Regional Government. Section 2 of Executive
Order No. 133 stated that:
"Sec 2. General Powers and Functions. The following powers and
functions of the Department of Health (DOH), as enumerated in
Section 4 of Executive Order No. 119, series of 1987, shall be
transferred to the Autonomous Regional Government (ARG) subject
to the specific conditions or limitations provided in this Executive
Order. x x x."
Notably, Executive Order No. 133 referred to the powers and functions of the
Department of Health under Executive Order No. 119 and not under the
Revised Administrative Code of 1987 because Executive Order No. 119 was
the existing charter of the Department of Health at the time of the effectivity
of the Organic Act of 1989.
Executive Order No. 133 was issued upon recommendation20 of the
Oversight Committee created by Section 3 of the Organic Act of 1989 "for the
purpose of supervising the transfer to the Autonomous Region of such
powers and functions vested in it by this Organic Act x x x." Section 3 of the
Organic Act mandated the President to "act on the report and
recommendations" of the Oversight Committee within ninety days after
receipt thereof.
The devolved powers under the Organic Act of 1989, as implemented by
Executive Order No. 133, included the power of supervision and control over
provincial health officers, as well as the power to appoint provincial health
officers. The power of supervision and control, previously exercised by the
Secretary of Health, carried with it the authority to assign provincial health
officers to any province within the region pursuant to Section 17 of Executive
Order No. 119. Assignment within a region of personnel appointed to a
region is an administrative matter exercised by the head of office who is
vested with the power of supervision and control over the office. Section 3 of
Executive Order No. 133 provided as follows:
Sec. 3. Functions of Department Secretary to be Transferred.
Hereunder are the authority and responsibilities of the Secretary of
the Department of Health which shall be vested in the Head of the
Regional Department of Health (Regional DOH):
a. x x x;
x x x;
c. Exercise supervision and control over the functions and activities
of the Regional Department within the autonomous region;
x x x. (Emphasis supplied)
Upon the effectivity of Executive Order No. 133, the administrative authority
of the Secretary of Health to assign provincial health officers to any province
within a region was transferred to the ARMM Secretary of Health as the
regional counterpart of the national Secretary of Health. This transfer of
administrative authority to the Regional Secretary was essential to insure the
continuation of vital health services to residents in the ARMM.
There could be no gap or lacuna in the transfer of administrative authority
from the National Government to the Regional Government because basic
and essential services were involved that affected the lives of people. This is
the reason why Section 3 of Executive Order No. 133 expressly stated that
"the authority and responsibility of the Secretary of the Department of Health
x x x shall be vested in the Head of the Regional Department of Health."
On the other hand, the power to appoint provincial health officers, previously
conferred by law on the Secretary of Health, was devolved to the Regional
Governor. The Organic Act of 1989 devolved specified powers of the
National Government to the three branches of the Regional Government,
executive power being devolved to the Regional Governor, legislative power
to the Regional Assembly and judicial power to the Shariah and tribal courts.
Section 2, Article IV of the Organic Act of 1989 provided that:
"Sec. 2. The powers devolved to the Autonomous Region shall be
exercised through the Regional Assembly, the Regional Governor,
and the special courts as provided in this Act."
Moreover, Section 1, Article VIII of the Organic Act of 1989 expressly vested
executive power in the Regional Governor:
"Section 1. The executive power shall be vested in a Regional
Governor who shall be elected at large by direct vote of the people of
the Autonomous Region."
The Regional Governor therefore acquired certain executive powers that the
President of the Philippines and the Secretary of Health used to exercise
prior to the Organic Act of 1989, subject to the limitations on the devolved
powers under the Organic Act.As the holder of executive power, the Regional
Governor was made the appointing power in the executive branch of the
Regional Government in accordance with Section 17 of Article VIII of the
Organic Act of 1989:
"Sec. 17. The Regional Governor shall appoint, in addition to the
members of the Cabinet, their deputies, the chairmen and members
of the commissions and the heads of bureaus of the Regional
Government, and those whom he may be authorized by regional law
to appoint. The Regional Assembly may, by law, vest the
appointment of other officers or officials lower in rank in the heads of
departments, agencies, commissions, or boards."
The appointing powers of the Regional Governor were those expressly
granted to him under the Organic Act of 1989, as well as those that he might
be granted pursuant to regional law. The Regional Assembly could also
enact a law authorizing regional department heads, like the ARMM Secretary
of Health, to appoint lower officials.
The power to appoint provincial health officers is one that the Regional
Assembly could thus grant by law to the Regional Secretary of Health.
However, the Regional Assembly has not enacted a law authorizing the
Regional Secretary of Health to appoint provincial health officers. Since the
power to appoint must be expressly conferred by law, and cannot be implied
from the power of supervision and control, this ruled out the Regional
Secretary of Health as the appointing power of provincial health officers.
Significantly, the power to appoint provincial health officers is not one of the
powers transferred to the Regional Secretary of Health under Executive
Order No. 133.
On the other hand, the Regional Governor is the official to whom the
executive powers of the national government have been expressly devolved.
This is clear from the language of Section 2, Article IV of the Organic Act of
1989 when it stated that the "powers devolved to the Autonomous Region
shall be exercised through the Regional Assembly, the Regional Governor,
and the special courts provided in this Act." It is understood that, unless
otherwise provided in the Organic Act of 1989, the Regional Governor would
exercise the devolved executive powers, the Regional Assembly the
devolved legislative powers, and the Shariah and tribal courts the devolved
judicial powers. Again, there could be no gap or lacuna in the devolution of
powers from the National Government to the Regional Government because
the exercise of these powers was essential to the maintenance of basic
services for the general welfare.
As provided in Section 2 (9), Article V of the Organic Act of 1989, part of the
devolved powers were the "[P]owers, functions and responsibilities exercised
by the departments of the National Government," except those expressly
excluded like foreign affairs, national defense and security, postal services
and others mentioned in the Organic Act. Since the Department of Health
was not excluded, the power to appoint provincial health officers, previously
vested in the Secretary of the Department of Health, was indisputably one of
the executive powers devolved to the Regional Government to be exercised
by the Regional Governor.
Until the Regional Assembly enacts a law authorizing some other ARMM
executive official to appoint provincial health officers, the power to appoint
provincial health officers would remain with the Regional Governor pursuant
to the devolution of powers under the Organic Act of 1989 as implemented
by Executive Order No. 133. The provincial health officers, after being
devolved to the Regional Government, became regional officials upon the
effectivity of Executive Order No. 133.
Fourth Period: After the ARMM Local Code
On January 25, 1994, the Regional Assembly enacted the ARMM Local
Code which was approved by the Regional Governor on March 3, 1994.
Section 457 of the ARMM Local Code provides that:
"Sec. 457. Officials of the Provincial Government. (a) There shall be
in each province a governor, a vice-governor, members of the
sangguniang panlalawigan, a secretary to the sangguniang
panlalawigan, a provincial treasurer, a provincial assessor, a
provincial accountant, a provincial planning and development
coordinator, a provincial legal officer, a provincial administrator, a
provincial health officer, x x x.
(b) In addition thereto, the governor may appoint a provincial
population officer, a provincial natural resources and environment
officer, x x x.
Provided, that the governor shall submit a list of at least three (3)
qualified recommendees to the autonomous regional government for
appointment, according to Civil Service law to the positions of a
Provincial Health Officer, a Provincial Social Welfare and
Development Officer, a Provincial Agriculturist, a Provincial Natural
Resources and Environment Officer, and a Provincial Tourism
Officer, to be paid by regional funds."
(c) x x x
(d) Unless otherwise provided herein, heads of departments and
offices shall be appointed by the governor with the concurrence of
the majority of all the sangguniang panlalawigan members, subject
to civil service law, rules and regulations. The sangguniang
panlalawigan shall act on the appointment within fifteen (15) days
from the date of its submission; otherwise the same shall be deemed
confirmed." (Emphasis supplied)
Under the ARMM Local Code, the provincial health officer in the ARMM,
previously a regional official, has also become a provincial government
official, catching up with the status of provincial health officers outside of the
ARMM. The Regional Governor appoints the provincial health officer from a
list of three recommendees of the Provincial Governor. The ARMM Local
Code provides that the salary of the provincial health officer shall be paid
from regional funds.
The ARMM Local Code also states that if the salary of the provincial health
officer comes mainly from provincial funds, the Provincial Governor is the
appointing power. The power of the Regional Governor to appoint provincial
officials applies only to provincial officials "paid by regional funds." Section
459 of the ARMM Local Code expressly provides that:
"Sec. 459. The Chief Executive. Powers, Duties, Functions, and
Compensation. (a) The provincial governor, as the chief executive of
the provincial government, shall exercise such powers and perform
such duties and functions as provided by this Code and other laws.
(b) For efficient, effective and economical governance the purpose of
which is the general welfare of the province and its inhabitants, the
provincial governor shall:
(1) Exercise general supervision and control over all programs,
projects, services, and activities of the provincial government and in
this connection, shall:
 xxx
(v) Appoint all officials and employees whose salaries and
wages are wholly or mainly paid out of provincial funds and
whose appointments are not otherwise provided for in this
Code, as well as those he may be authorized by law to
appoint; (Emphasis supplied)
x x x."
The ARMM Local Code must be interpreted liberally in favor of the powers of
the provincial governor as against those of the Regional Governor. Section 5
(a) of the ARMM Local Code mandates that:
"Sec. 5. Rules of Interpretation. In the interpretation of the provisions
of this Code, the following rules shall apply:
(a) Any provision on the power of the autonomous government and
its local government units shall be liberally interpreted in its favor,
and in case of doubt, any question thereon shall be resolved in favor
of the devolution of powers and of the lower local government unit.
Any fair and reasonable doubt as to the existence of the power shall
be interpreted in favor of the local government unit concerned;
(Emphasis supplied)
x x x."
Consequently, if a province can afford and is willing to shoulder the salary of
its provincial health officer, then the Provincial Governor becomes the
appointing power in place of the Regional Governor since this will favor the
devolution of power to a lower local government unit.
Section 459 of the ARMM Local Code vests in the Provincial Governor the
power to exercise supervision and control over all provincial government
officials. The conversion of the provincial health officer from a regional
government official to a provincial government official under Section 457 of
the ARMM Local Code placed the provincial health officer under the
supervision and control of the Provincial Governor. Consequently, with the
passage of the ARMM Local Code the Regional Secretary of Health lost the
authority to assign provincial health officers to other provinces within the
region.
The state of the law after the enactment of the ARMM Local Code became
more favorable to Provincial Governors, at least with respect to the
appointment and assignment of provincial health officers. While before the
appointment of provincial health officers was solely the prerogative of the
Regional Governor, now a Provincial Governor has the power to recommend
three nominees. The Regional Governor can appoint only from among the
three nominees of the Provincial Governor even though the salary of the
provincial health officer comes from regional funds. Likewise, while before
the Regional Secretary of Health could assign provincial health officers to
other provinces within the region, this authority of the Regional Secretary
ceased to exist. Since a provincial health officer was now appointed to a
specific province, he could no longer be assigned to another province without
his consent. Moreover, the Provincial Governor now exercises supervision
and control over the provincial health officer who has become a provincial
government official. Finally, if the provincial government assumes payment of
the salary of the provincial health officer, then the Provincial Governor
becomes the appointing power of such provincial official.
Fifth Period: The Organic Act of 2001
Republic Act No. 9054 ("Organic Act of 2001" for brevity) took effect on
August 14, 2001, the date of its ratification by a majority of the votes cast in a
plebiscite held for the purpose within the constituent units of the ARMM. The
Organic Act of 2001 incorporates the salient features of the Peace
Agreement entered into between the National Government and the Moro
National Liberation Front on September 2, 1996.21 The Organic Act of 2001
is a completely new autonomy act for Muslim Mindanao since it totally
replaced the Organic Act of 1989. It is not an ordinary amendment but a total
substitution since the Organic Act of 2001 is as comprehensive as the
Organic Act of 1989.
The Organic Act of 2001 expressly adopted, as a minimum, the devolution
under the 1991 LGU Code. This gave the local government units within
ARMM the same devolved powers, functions and tax-sharing entitlements
enjoyed by local government units outside of the ARMM. Section 3, Article III
of the Organic Act of 2001 provides that:
"Sec 3. Devolution of Powers. x x x.
The Regional Assembly may not pass any law to diminish, lessen, or
reduce the powers, functions, and shares in the internal revenue
taxes of the said local government units as provided by Republic Act
No. 7160, the Local Government Code of 1991." (Emphasis
supplied)
To stress the importance of this legislative policy, the provisions of Section 3
of Article III are reiterated in Section 1 of Article IV of the same Organic Act,
to wit:
 "Section 1. Powers and Functions. x x x.
The Regional Government may enact its own regional administrative
code and regional local government code consistent with the
Constitution. The powers and functions already vested upon and the
shares of the national taxes provided by Republic Act No. 7160, the
Local Government Code of 1991, to provinces, cities, municipalities,
and barangays in the autonomous region shall not be reduced."
(Emphasis supplied)
Congress expressly made the devolved powers and functions under the
1991 LGU Code as the basic minimum for all local government units in the
ARMM precisely to put them on equal footing with local government units
outside of the ARMM. Congress was aware that the 1991 LGU Code took
effect after the Organic Act of 1989 became law, and therefore the devolved
powers and functions under the 1991 LGU Code could not have been
incorporated into the Organic Act of 1989. Congress was also aware that the
Supreme Court had ruled, in Matalam vs. Pangandaman,22 that the 1991
LGU Code "being a general law, may not be made to prevail over a special
law or code" like the ARMM Local Code. Section 3 of Article III and Section 1
of Article IV of the Organic Act of 2001 corrected this imbalance in the
devolved powers and functions between local government units within and
those outside of the ARMM.
In contrast, the Organic Act of 1989 adopted, as a minimum, the devolution
under the 1984 LGU Code which was the existing local government code at
that time. Under the Organic Act of 1989, the Regional Assembly could not
diminish or reduce the powers, functions and responsibilities that the local
government units "already enjoyed" at the time of the effectivity of the
Organic Act of 1989. This did not prevent, however, Congress from
subsequently increasing the share in national taxes of local government units
within the ARMM to the same level as that of local government units outside
of the ARMM. Such increase in allotment of national taxes did not amend or
revise in any way the Organic Act of 1989 since the formula for the tax
sharing is found in the 1991 LGU Code, not in the Organic Act of 1989.
There was still, however, the issue of whether the Regional Government
could reduce the share of local government units in national taxes as
provided in the 1991 LGU Code. With the passage of the Organic Act of
2001, this issue has been resolved in favor of local government units in the
ARMM.
The passage of the Organic Act of 2001 means that the powers and
functions of a Provincial Governor under the 1991 LGU Code are now
enjoyed, as a minimum, by a Provincial Governor in the ARMM. Thus, the
Provincial Governor appoints the provincial health officer if the latters salary
comes from provincial funds. If the provincial health officers salary comes
mainly from regional funds, then the ARMM Local Code applies, in which
case the Regional Governor is the appointing power but he must appoint only
from among the three nominees of the Provincial Governor. Moreover, the
Provincial Governor exercises supervision and control over the provincial
health officer because the ARMM Local Code has classified him as a
provincial government official. This is now the present state of the law on the
appointment of provincial health officers in the ARMM. This is actually the
same as the law after the effectivity of the ARMM Local Code but prior to the
passage of the Organic Act of 2001. The only difference is that the Regional
Assembly cannot amend the ARMM Local Code to reduce or diminish this
power of the Provincial Governor because this devolved power, emanating
from the 1991 LGU Code, is now part of the Organic Act of 2001.
Application of the law to the designation of Saber
Lanao del Sur Provincial Governor Mahid M. Mutilan designated Saber as
Officer-in-Charge of the IPHO-APGH, Lanao del Sur, on September 15,
1993. On this date the provincial health officer of Lanao del Sur was still a
national government official paid entirely from national funds. The provincial
health officer was still appointed by the national Secretary of Health to a
region and not to a province. The Secretary of Health exercised supervision
and control over the provincial health officer. The Secretary of Health was
also the official authorized by law to assign the provincial health officer to any
province within the region. Indisputably, on September 15, 1993, Provincial
Governor Mutilan had no power to designate Saber as Officer-in-Charge of
IPHO-APGH, Lanao del Sur. Consequently, the designation of Saber as such
Officer-in-Charge is void.
The provincial health officer of Lanao del Sur became a provincial
government official only after the effectivity of the ARMM Local Code, which
was enacted by the Regional Assembly on January 25, 1994 and approved
by the Regional Governor on March 3, 1994. Prior to the ARMM Local Code
but after the issuance of Executive Order No. 133, the Regional Governor
appointed the provincial health officer while the Regional Secretary of Health
could assign the provincial health officer to any province within the ARMM.
The Provincial Governor had no power to appoint or even designate the
Officer-in-Charge of the provincial health office.
The Court of Appeals reliance on Section 478 of the 1991 LGU Code as
Provincial Governor Mutilans authority to appoint Saber is misplaced.
Section 478 of the 1991 LGU Code, which provides that "[T]he appointment
of a health officer shall be mandatory for provincial, city and municipal
governments," is not a grant of power to governors and mayors to appoint
local health officers. It is simply a directive that those empowered to appoint
local health officers are mandated to do so. In short, the appointment of local
health officers, being essential for public services, is a mandatory obligation
on the part of those vested by law with the power to appoint them. Moreover,
as explained earlier, the 1991 LGU Code did not amend the Organic Act of
1989.
Application of the law to the appointment and transfer of Sani
Sani was appointed provincial health officer by then Secretary of Health
Alfredo R.A. Bengzon on January 1, 1988. He was appointed as "Provincial
Health Officer (R-05 5th Step), Office of the Regional Health Director,
Regional Health Office No. XII, Cotabato City." Sani was appointed provincial
health officer in Region XII since at that time Executive Order No. 119, the
charter of the Department of Health, expressly stated that provincial health
officers were to be appointed to a region. The Secretary of Health, upon
recommendation of the Regional Director, could assign provincial health
officers to any province within the region. In Miclat vs. Ganaden,23 this Court
held that:
"While the doctrine x x x to the effect that the transfers of officers
against their will amount to a removal, the same is predicated upon
the theory that said officers are appointed to particular stations and
as such cannot be transferred without their consent. x x x.
The case before us, however, does not involve any appointment to
any particular station. It merely concerns an assignment to a station
made in the interest of the service. x x x."
Consequently, Sani cannot claim any security of tenure as provincial health
officer of Lanao del Sur because he was never appointed to that office.
Macacua, in her capacity as Regional Director and ARMM Secretary of
Health, detailed Sani to the DOH-ARMM Regional Office in Cotabato City on
August 9, 1993. As of that date, the powers and functions of the Department
of Health were not yet transferred to the Regional Government, and the
Secretary of Health of the National Government still exercised the power to
assign the provincial health officers in the ARMM. Consequently, the August
9, 1993 directive of Macacua detailing or assigning Sani to the Regional
Office in Cotabato City is void.
However, on November 6, 1993, Macacua issued another Memorandum
reiterating Sanis detail or assignment to the Regional Office in Cotabato
City. This second Memorandum was issued after the issuance of Executive
Order No. 133 which expressly transferred "supervision and control over all
functions and activities of the Regional Department of Health" to "the Head of
the Regional Department of Health." In Gen. Renato de Villa vs. City of
Bacolod,24 this Court ruled that the power of administrative control
encompasses the power to transfer personnel who under the law may be
reassigned to other stations. The second detail or assignment of Sani to the
Regional Office in Cotabato, issued on November 6, 1993, is within the
authority of Macacua as Regional Secretary of Health. Thus, the second
detail of Sani is valid.
Application of the law to the designation of Pandi
Macacua, as Regional Director and Regional Secretary of Health, designated
Pandi Officer-in-Charge of the IPHO-APGH, Lanao del Sur, on August 9,
1993 and again on November 6, 1993. The designation dated August 9,
1993 is void since the Regional Secretary at that time did not yet exercise
supervision and control over the provincial health offices of the ARMM.
However, the designation of Pandi on November 6, 1993 is valid since at that
time Executive Order No. 133 had already been issued vesting in the
Regional Secretary of Health supervision and control over all functions and
activities of the Department of Health in the ARMM. The designation of
Pandi, however, while valid is only temporary in nature, good until a new
designation or a permanent appointment is made.
As Regional Secretary of Health, Macacua was, as of November 6, 1993, the
official vested by law to exercise supervision and control over all provincial
health offices in the ARMM. The Regional Secretary, by virtue of Executive
Order No. 133, assumed the administrative powers and functions of the
Secretary of Health of the National Government with respect to provincial
health offices within the ARMM. The official exercising supervision and
control over an office has the administrative authority to designate, in the
interest of public service, an Officer-in-Charge if the office becomes vacant.
Macacua, therefore, had the authority on November 6, 1993 to designate an
Officer-in-Charge in the provincial health office of Lanao del Sur pending the
appointment of the permanent provincial health officer. After the effectivity of
the ARMM Local Code, the Regional Secretary of Health lost the authority to
make such a designation.
Under the ARMM Local Code, the provincial health officer became for the
first an official of the provincial government even though he is appointed by
the Regional Governor and draws his salary from regional funds. The ARMM
Local Code vests in the Provincial Governor the power to "exercise general
supervision and control over all programs, projects, services, and activities of
the provincial government." Upon the effectivity of the ARMM Local Code,
the power of supervision and control over the provincial health officer passed
from the Regional Secretary to the Provincial Governor. From then on the
Provincial Governor began to exercise the administrative authority to
designate an Officer-in-Charge in the provincial health office pending the
appointment of a permanent provincial health officer.
WHEREFORE, the petition is GRANTED and the assailed decision of the
Court of Appeals dated April 15, 1994 in CA-G.R. SP No. 32242 is SET
ASIDE. The designation on September 15, 1993 of Dr. Amer A. Saber as
Officer-in-Charge of the Integrated Provincial Health Office of Lanao del Sur
is declared void. On the other hand, the designation on November 6, 1993 of
Dr. Lampa I. Pandi as Officer-in-Charge of the Integrated Provincial Health
Office of Lanao del Sur, and the assignment on November 6, 1993 of Dr.
Mamasao Sani to the DOH-ARMM Regional Office in Cotabato City, are
declared valid. No costs.

SO ORDERED.
G.R. No. 175368 April 11, 2013
LEAGUE OF PROVINCES OF THE PHILIPPINES, Petitioner,
vs.
DEPARTMENT OF ENVIRONMENT and NATURAL RESOURCES and
HON. ANGELO T. REYES, in his capacity as Secretary of DENR,
Respondents.
DECISION
PERALTA, J.:
mandamus,1
This is a petition for certiorari, prohibition and praying that this
Court order the following: ( 1) declare as unconstitutional Section 17(b)(3)(iii)
of Republic Act (R.A.) No. 7160, otherwise known as The Local Government
Code of 1991 and Section 24 of Republic Act (R.A.) No. 7076, otherwise
known as the People's Small-Scale Mining Act of 1991; (2) prohibit and bar
respondents from exercising control over provinces; and (3) declare as illegal
the respondent Secretary of the Department of Energy and Natural
Resources' (DENR) nullification, voiding and cancellation of the Small-Scale
Mining permits issued by the Provincial Governor of Bulacan.
The Facts are as follows:
On March 28, 1996, Golden Falcon Mineral Exploration Corporation (Golden
Falcon) filed with the DENR Mines and Geosciences Bureau Regional Office
No. III (MGB R-III) an Application for Financial and Technical Assistance
Agreement (FTAA) covering an area of 61,136 hectares situated in the
Municipalities of San Miguel, San Ildefonso, Norzagaray and San Jose del
Monte, Bulacan.2
On April 29, 1998, the MGB R-III issued an Order denying Golden Falcon's
Application for Financial and Technical Assistance Agreement for failure to
secure area clearances from the Forest Management Sector and Lands
Management Sector of the DENR Regional Office No. III.3
On November 11, 1998, Golden Falcon filed an appeal with the DENR Mines
and Geosciences Bureau Central Office (MGB-Central Office), and sought
reconsideration of the Order dated April 29, 1998.4
On February 10, 2004, while Golden Falcon's appeal was pending, Eduardo
D. Mercado, Benedicto S. Cruz, Gerardo R. Cruz and Liberato Sembrano
filed with the Provincial Environment and Natural Resources Office (PENRO)
of Bulacan their respective Applications for Quarry Permit (AQP), which
covered the same area subject of Golden Falcon's Application for Financial
and Technical Assistance Agreement.5
On July 16, 2004, the MGB-Central Office issued an Order denying Golden
Falcon's appeal and affirming the MGB R-III's Order dated April 29, 1998.
On September 13, 2004, Atlantic Mines and Trading Corporation (AMTC)
filed with the PENRO of Bulacan an Application for Exploration Permit (AEP)
covering 5,281 hectares of the area covered by Golden Falcon's Application
for Financial and Technical Assistance Agreement.6
On October 19, 2004, DENR-MGB Director Horacio C. Ramos, in response
to MGB R-III Director Arnulfo V. Cabantog's memorandum query dated
September 8, 2004, categorically stated that the MGB-Central Office's Order
dated July 16, 2004 became final on August 11, 2004, fifteen (15) days after
Golden Falcon received the said Order, per the Certification dated October 8,
2004 issued by the Postmaster II of the Philippine Postal Corporation of
Cainta, Rizal.7
Through letters dated May 5 and May 10, 2005, AMTC notified the PENRO
of Bulacan and the MGB R-III Director, respectively, that the subject
Applications for Quarry Permit fell within its (AMTC's) existing valid and prior
Application for Exploration Permit, and the the former area of Golden Falcon
was open to mining location only on August 11, 2004 per the Memorandum
dated October 19, 2004 of the MGB Director, Central Office.8
On June 24, 2005, Ricardo Medina, Jr., PENRO of Bulacan, indorsed
AMTC's letter to the Provincial Legal Officer, Atty. Eugenio F. Resurreccion,
for his legal opinion on which date of denial of Golden Falcon's
application/appeal April 29, 1998 or July 16, 2004 is to be considered in
the deliberation of the Provincial Mining Regulatory Board (PMRB) for the
purpose of determining when the land subject of the Applications for Quarry
Permit could be considered open for application.
On June 28, 2005, Provincial Legal Officer Eugenio Resurreccion issued a
legal opinion stating that the Order dated July 16, 2004 of the MGB-Central
Office was a mere reaffirmation of the Order dated April 29, 1998 of the MGB
R-III; hence, the Order dated April 29, 1998 should be the reckoning period
of the denial of the application of Golden Falcon.
On July 22, 2005, AMTC filed with the PMRB of Bulacan a formal protest
against the aforesaid Applications for Quarry Permit on the ground that the
subject area was already covered by its Application for Exploration Permit.9
On August 8, 2005, MGB R-III Director Cabantog, who was the concurrent
Chairman of the PMRB, endorsed to the Provincial Governor of Bulacan,
Governor Josefina M. dela Cruz, the aforesaid Applications for Quarry Permit
that had apparently been converted to Applications for Small-Scale Mining
Permit of Eduardo D. Mercado, Benedicto S. Cruz, Gerardo R. Cruz and
Lucila S. Valdez (formerly Liberato Sembrano).10
On August 9, 2005, the PENRO of Bulacan issued four memoranda
recommending to Governor Dela Cruz the approval of the aforesaid
Applications for Small-Scale Mining Permit.11
On August 10, 2005, Governor Dela Cruz issued the corresponding Small-
Scale Mining Permits in favor of Eduardo D. Mercado, Benedicto S. Cruz,
Gerardo R. Cruz and Lucila S. Valdez.12
Subsequently, AMTC appealed to respondent DENR Secretary the grant of
the aforesaid Small-Scale Mining Permits, arguing that: (1) The PMRB of
Bulacan erred in giving due course to the Applications for Small-Scale Mining
Permit without first resolving its formal protest; (2) The areas covered by the
Small-Scale Mining Permits fall within the area covered by AMTC's valid prior
Application for Exploration Permit; (3) The Applications for Quarry Permit
were illegally converted to Applications for Small-Scale Mining Permit; (4)
DENR-MGB Director Horacio C. Ramos' ruling that the subject areas
became open for mining location only on August 11, 2004 was controlling; (5)
The Small-Scale Mining Permits were null and void because they covered
areas that were never declared People's Small-Scale Mining Program sites
as mandated by Section 4 of the People's Small-Scale Mining Act of 1991;
and (6) Iron ore is not considered as one of the quarry resources, as defined
by Section 43 of the Philippine Mining Act of 1995, which could be subjects
of an Application for Quarry Permit.13
On August 8, 2006, respondent DENR Secretary rendered a Decision14 in
favor of AMTC. The DENR Secretary agreed with MGB Director Horacio C.
Ramos that the area was open to mining location only on August 11, 2004,
fifteen (15) days after the receipt by Golden Falcon on July 27, 2004 of a
copy of the MGB-Central Office's Order dated July 16, 2004, which Order
denied Golden Falcon's appeal. According to the DENR Secretary, the filing
by Golden Falcon of the letter-appeal suspended the finality of the Order of
denial issued on April 29, 1998 by the Regional Director until the resolution of
the appeal on July 16, 2004 by the MGB-Central Office. He stated that the
Applications for Quarry Permit were filed on February 10, 2004 when the
area was still closed to mining location; hence, the Small-Scale Mining
Permits granted by the PMRB and the Governor were null and void. On the
other hand, the DENR Secretary declared that AMTC filed its Application for
Exploration Permit when the area was already open to other mining
applicants; thus, AMTCs Application for Exploration Permit was valid.
Moreover, the DENR Secretary held that the questioned Small-Scale Mining
Permits were issued in violation of Section 4 of R.A. No. 7076 and beyond
the authority of the Provincial Governor pursuant to Section 43 of R.A. No.
7942, because the area was never proclaimed to be under the People's
Small-Scale Mining Program. Further, the DENR Secretary stated that iron
ore mineral is not considered among the quarry resources.
The dispositive portion of the DENR Secretarys Decision reads:
WHEREFORE, the Application for Exploration Permit, AEP-III-02-04 of
Atlantic Mines and Trading Corp. is declared valid and may now be given
due course. The Small-Scale Mining Permits, SSMP-B-002-05 of Gerardo
Cruz, SSMP-B-003-05 of Eduardo D. Mercado, SSMP-B-004-05 of
Benedicto S. Cruz and SSMP-B-005-05 of Lucila S. Valdez are declared
NULL AND VOID. Consequently, the said permits are hereby
CANCELLED.15
Hence, petitioner League of Provinces filed this petition.
Petitioner is a duly organized league of local governments incorporated
under R.A. No. 7160. Petitioner declares that it is composed of 81 provincial
governments, including the Province of Bulacan. It states that this is not an
action of one province alone, but the collective action of all provinces through
the League, as a favorable ruling will not only benefit one province, but all
provinces and all local governments.
Petitioner raises these issues:
I
WHETHER OR NOT SECTION 17(B)(3)(III) OF THE, 1991 LOCAL
GOVERNMENT CODE AND SECTION 24 OF THE PEOPLE'S SMALL-
SCALE MINING ACT OF 1991 ARE UNCONSTITUTIONAL FOR
PROVIDING FOR EXECUTIVE CONTROL AND INFRINGING UPON THE
LOCAL AUTONOMY OF PROVINCES.
II
WHETHER OR NOT THE ACT OF RESPONDENT [DENR] IN NULLIFYING,
VOIDING AND CANCELLING THE SMALL-SCALE MINING PERMITS
AMOUNTS TO EXECUTIVE CONTROL, NOT MERELY SUPERVISION
AND USURPS THE DEVOLVED POWERS OF ALL PROVINCES.16
To start, the Court finds that petitioner has legal standing to file this petition
because it is tasked under Section 504 of the Local Government Code of
1991 to promote local autonomy at the provincial level;17 adopt measures for
the promotion of the welfare of all provinces and its officials and
employees;18 and exercise such other powers and perform such other duties
and functions as the league may prescribe for the welfare of the provinces. 19
Before this Court determines the validity of an act of a co-equal and
coordinate branch of the Government, it bears emphasis that ingrained in our
jurisprudence is the time-honored principle that a statute is presumed to be
valid.20 This presumption is rooted in the doctrine of separation of powers
which enjoins upon the three coordinate departments of the Government a
becoming courtesy for each other's acts.21 This Court, however, may declare
a law, or portions thereof, unconstitutional where a petitioner has shown a
clear and unequivocal breach of the Constitution,22 leaving no doubt or
hesitation in the mind of the Court.23
In this case, petitioner admits that respondent DENR Secretary had the
authority to nullify the Small-Scale Mining Permits issued by the Provincial
Governor of Bulacan, as the DENR Secretary has control over the PMRB,
and the implementation of the Small-Scale Mining Program is subject to
control by respondent DENR.
Control of the DENR/DENR Secretary over small-scale mining in the
provinces is granted by three statutes: (1) R.A. No. 7061 or The Local
Government Code of 1991; (2) R.A. No. 7076 or the People's Small Scale
Mining Act of 1991; and (3) R.A. No. 7942, otherwise known as the Philippine
Mining Act of 1995.24 The pertinent provisions of law sought to be declared
as unconstitutional by petitioner are as follows:
R.A. No. 7061 (The Local Government Code of 1991)
SEC. 17. Basic Services and Facilities. - (a) Local government units shall
endeavor to be self-reliant and shall continue exercising the powers and
discharging the duties and functions currently vested upon them. They shall
also discharge the functions and responsibilities of national agencies and
offices devolved to them pursuant to this Code. Local government units shall
likewise exercise such other powers and discharge such other functions and
responsibilities as are necessary, appropriate, or incidental to efficient and
effective provision of the basic services and facilities enumerated herein.
(b) Such basic services and facilities include, but are not limited to, the
following:
xxxx
(3) For a Province:c
xxxx
(iii) Pursuant to national policies and subject to supervision, control and
review of the DENR, enforcement of forestry laws limited to community-
based forestry projects, pollution control law, small-scale mining law, and
other laws on the protection of the environment; and mini-hydro electric
projects for local purposes; x x x25
R.A. No. 7076 (People's Small-Scale Mining Act of 1991)
Sec. 24. Provincial/City Mining Regulatory Board. - There is hereby created
under the direct supervision and control of the Secretary a provincial/city
mining regulatory board, herein called the Board, which shall be the
implementing agency of the Department, and shall exercise the following
powers and functions, subject to review by the Secretary:
(a) Declare and segregate existing gold-rush areas for small-scale
mining;
(b) Reserve future gold and other mining areas for small-scale
mining;
(c) Award contracts to small-scale miners;
(d) Formulate and implement rules and regulations related to small-
scale mining;
(e) Settle disputes, conflicts or litigations over conflicting claims
within a peoples small-scale mining area, an area that is declared a
small-mining; and
(f) Perform such other functions as may be necessary to achieve the
goals and objectives of this Act.26
Petitioner contends that the aforecited laws and DENR Administrative Order
No. 9640 (the Implementing Rules and Regulations of the Philippine Mining
Act of 1995) did not explicitly confer upon respondents DENR and the DENR
Secretary the power to reverse, abrogate, nullify, void, or cancel the permits
issued by the Provincial Governor or small-scale mining contracts entered
into by the PMRB. The statutes are also silent as to the power of respondent
DENR Secretary to substitute his own judgment over that of the Provincial
Governor and the PMRB.
Moreover, petitioner contends that Section 17 (b)(3)(iii) of the Local
Government Code of 1991 and Section 24 of R.A. No. 7076, which confer
upon respondents DENR and the DENR Secretary the power of control are
unconstitutional, as the Constitution states that the President (and Executive
Departments and her alter-egos) has the power of supervision only, not
control, over acts of the local government units, and grants the local
government units autonomy, thus:
The 1987 Constitution:
Article X, Section 4. The President of the Philippines shall exercise general
supervision over local governments. Provinces with respect to component
cities and municipalities, and cities and municipalities with respect to
component barangays, shall ensure that the acts of their component units
are within the scope of their prescribed powers and functions. 27
Petitioner contends that the policy in the above-cited constitutional provision
is mirrored in the Local Government Code, which states:
SEC. 25. National Supervision over Local Government Units. - (a) Consistent
with the basic policy on local autonomy, the President shall exercise general
supervision over local government units to ensure that their acts are within
the scope of their prescribed powers and functions.
The President shall exercise supervisory authority directly over provinces,
highly urbanized cities, and independent component cities; through the
province with respect to component cities and municipalities; and through the
city and municipality with respect to barangays.28
Petitioner contends that the foregoing provisions of the Constitution and the
Local Government Code of 1991 show that the relationship between the
President and the Provinces or respondent DENR, as the alter ego of the
President, and the Province of Bulacan is one of executive supervision, not
one of executive control. The term "control" has been defined as the power of
an officer to alter or modify or set aside what a subordinate officer had done
in the performance of his/her duties and to substitute the judgment of the
former for the latter, while the term "supervision" is the power of a superior
officer to see to it that lower officers perform their function in accordance with
law.29
Petitioner argues that respondent DENR Secretary went beyond mere
executive supervision and exercised control when he nullified the small-scale
mining permits granted by the Provincial Governor of Bulacan, as the former
substituted the judgment of the latter.
Petitioner asserts that what is involved here is a devolved power.
Under the Local Government Code of 1991, the power to regulate small-
scale mining has been devolved to all provinces. In the exercise of devolved
powers, departmental approval is not necessary.30
Petitioner contends that if the provisions in Section 24 of R.A. No. 7076 and
Section 17 (b)(3)(iii) of the Local Government Code of 1991 granting the
power of control to the DENR/DENR Secretary are not nullified, nothing
would stop the DENR Secretary from nullifying, voiding and canceling the
small-scale mining permits that have been issued by a Provincial Governor.
Petitioner submits that the statutory grant of power of control to respondents
is unconstitutional, as the Constitution only allows supervision over local
governments and proscribes control by the executive departments.
In its Comment, respondents, represented by the Office of the Solicitor
General, stated that contrary to the assertion of petitioner, the power to
implement the small-scale mining law is expressly limited in Section 17
(b)(3)(iii) of the Local Government Code, which provides that it must be
carried out "pursuant to national policies and subject to supervision, control
and review of the DENR." Moreover, the fact that the power to implement the
small-scale mining law has not been fully devolved to provinces is further
amplified by Section 4 of the People's Small-Scale Mining Act of 1991, which
provides, among others, that the People's Small-Scale Mining Program shall
be implemented by the DENR Secretary.
The petition lacks merit.
Paragraph 1 of Section 2, Article XII (National Economy and Patrimony) of
the Constitution31 provides that "the exploration, development and utilization
of natural resources shall be under the full control and supervision of the
State."
Moreover, paragraph 3 of Section 2, Article XII of the Constitution provides
that "the Congress may, by law, allow small-scale utilization of natural
resources by Filipino citizens x x x."
Pursuant to Section 2, Article XII of the Constitution, R.A. No. 7076 or the
People's Small-Scale Mining Act of 1991, was enacted, establishing under
Section 4 thereof a People's Small-Scale Mining Program to be implemented
by the DENR Secretary in coordination with other concerned government
agencies.
The People's Small-Scale Mining Act of 1991 defines "small-scale mining" as
"refer[ring] to mining activities, which rely heavily on manual labor using
simple implement and methods and do not use explosives or heavy mining
equipment."32
It should be pointed out that the Administrative Code of 198733 provides that
the DENR is, subject to law and higher authority, in charge of carrying out the
State's constitutional mandate, under Section 2, Article XII of the
Constitution, to control and supervise the exploration, development,
utilization and conservation of the country's natural resources. Hence, the
enforcement of small-scale mining law in the provinces is made subject to
the supervision, control and review of the DENR under the Local
Government Code of 1991, while the Peoples Small-Scale Mining Act of
1991 provides that the Peoples Small-Scale Mining Program is to be
implemented by the DENR Secretary in coordination with other concerned
local government agencies.
Indeed, Section 4, Article X (Local Government) of the Constitution states
that "[t]he President of the Philippines shall exercise general supervision over
local governments," and Section 25 of the Local Government Code reiterates
the same. General supervision by the President means no more than seeing
to it that laws are faithfully executed or that subordinate officers act within the
law.34
The Court has clarified that the constitutional guarantee of local autonomy in
the Constitution Art. X, Sec. 2 refers to the administrative autonomy of local
government units or, cast in more technical language, the decentralization of
government authority.35 It does not make local governments sovereign within
the State.36 Administrative autonomy may involve devolution of powers, but
subject to limitations like following national policies or standards,37 and those
provided by the Local Government Code, as the structuring of local
governments and the allocation of powers, responsibilities, and resources
among the different local government units and local officials have been
placed by the Constitution in the hands of Congress38 under Section 3,
Article X of the Constitution.
Section 3, Article X of the Constitution mandated Congress to "enact a local
government code which shall provide for a more responsive and accountable
local government structure instituted through a system of decentralization
with effective mechanisms of recall, initiative, and referendum, allocate
among the different local government units their powers, responsibilities, and
resources, and provide for the qualifications, election, appointment and
removal, term, salaries, powers and functions and duties of local officials,
and all other matters relating to the organization and operation of the local
units."
In connection with the enforcement of the small-scale mining law in the
province, Section 17 of the Local Government Code provides:
SEC. 17. Basic Services and Facilities. - (a) Local government units shall
endeavor to be self-reliant and shall continue exercising the powers and
discharging the duties and functions currently vested upon them. They shall
also discharge the functions and responsibilities of national agencies and
offices devolved to them pursuant to this Code. Local government units shall
likewise exercise such other powers and discharge such other functions and
responsibilities as are necessary, appropriate, or incidental to efficient and
effective provision of the basic services and facilities enumerated herein.
(b) Such basic services and facilities include, but are not limited to, the
following:
xxxx
(3) For a Province:c
xxxx
(iii) Pursuant to national policies and subject to supervision, control and
review of the DENR, enforcement of forestry laws limited to community-
based forestry projects, pollution control law, small-scale mining law, and
other laws on the protection of the environment; and mini-hydro electric
projects for local purposes;39
Clearly, the Local Government Code did not fully devolve the enforcement of
the small-scale mining law to the provincial government, as its enforcement
is subject to the supervision, control and review of the DENR, which is in
charge, subject to law and higher authority, of carrying out the State's
constitutional mandate to control and supervise the exploration,
development, utilization of the country's natural resources.40
Section 17 (b)(3)(iii) of the Local Government Code of 1991 is in harmony
with R.A. No. 7076 or the People's Small-Scale Mining Act of 1991,41 which
established a People's Small-Scale Mining Program to be implemented by
the Secretary of the DENR, thus:
Sec. 2. Declaration of Policy. It is hereby declared of the State to promote,
develop, protect and rationalize viable small-scale mining activities in order to
generate more employment opportunities and provide an equitable sharing of
the nation's wealth and natural resources, giving due regard to existing rights
as herein provided.
 xxxx
Sec. 4. People's Small-Scale Mining Program. - For the purpose of carrying
out the declared policy provided in Section 2 hereof, there is hereby
established a People's Small-Scale Mining Program to be implemented by
the Secretary of the Department of Environment and Natural Resources,
hereinafter called the Department, in coordination with other concerned
government agencies, designed to achieve an orderly, systematic and
rational scheme for the small-scale development and utilization of mineral
resources in certain mineral areas in order to address the social, economic,
technical, and environmental problems connected with small-scale mining
activities.
xxxx
Sec. 24. Provincial/City Mining Regulatory Board. There is hereby created
under the direct supervision and control of the Secretary a provincial/city
mining regulatory board, herein called the Board, which shall be the
implementing agency of the Department, and shall exercise the following
powers and functions, subject to review by the Secretary:
(a) Declare and segregate existing gold-rush areas for small-scale
mining;
(b) Reserve future gold and other mining areas for small-scale
mining;
(c) Award contracts to small-scale miners;
(d) Formulate and implement rules and regulations related to small-
scale mining;
(e) Settle disputes, conflicts or litigations over conflicting claims
within a peoples small-scale mining area, an area that is declared a
small-mining; and
(f) Perform such other functions as may be necessary to achieve the
goals and objectives of this Act.42
DENR Administrative Order No. 34, series of 1992, containing the Rules and
Regulations to implement R.A. No. 7076, provides:
SEC. 21. Administrative Supervision over the People's Small-Scale Mining
Program. The following DENR officials shall exercise the following
supervisory functions in the implementation of the Program:
21.1 DENR Secretrary direct supervision and control over the
program and activities of the small-scale miners within the people's
small-scale mining area;
21.2 Director the Director shall:
a. Recommend the depth or length of the tunnel or adit
taking into account the: (1) size of membership and
capitalization of the cooperative; (2) size of mineralized
areas; (3) quantity of mineral deposits; (4) safety of miners;
and (5) environmental impact and other considerations;
b. Determine the right of small-scale miners to existing
facilities in consultation with the operator, claimowner,
landowner or lessor of an affected area upon declaration of a
small-scale mining area;
c. Recommend to the Secretary the withdrawal of the status
of the people's small-scale mining area when it can no
longer be feasibly operated on a small-scale basis; and
d. See to it that the small-scale mining contractors abide by
small-scale mines safety rules and regulations.
xxxx
SEC. 22. Provincial/City Mining Regulatory Board. The Provincial/City
Mining Regulatory Board created under R.A. 7076 shall exercise the
following powers and functions, subject to review by the Secretary:
22.1 Declares and segregates existing gold rush area for small-scale
mining;
22.2 Reserves for the future, mineralized areas/mineral lands for
people's small-scale mining;
22.3 Awards contracts to small-scale miners cooperative;
22.4 Formulates and implements rules and regulations related to
R.A. 7076;
 22.5 Settles disputes, conflicts or litigations over conflicting claims
within ninety (90) days upon filing of protests or complaints;
Provided, That any aggrieved party may appeal within five (5) days
from the Board's decision to the Secretary for final resolution
otherwise the same is considered final and executory; and
22.6 Performs such other functions as may be necessary to achieve
the goals and objectives of R.A. 7076.
SEC. 6. Declaration of People's Small-Scale Mining Areas. The Board
created under R.A. 7076 shall have the authority to declare and set aside
People's Small-Scale Mining Areas in sites onshore suitable for small-scale
mining operations subject to review by the DENR Secretary thru the
Director.43
DENR Administrative Order No. 23, otherwise known as the Implementing
Rules and Regulations of R.A. No. 7942, otherwise known as the Philippine
Mining Act of 1995, adopted on August 15, 1995, provides under Section
12344 thereof that small-scale mining applications should be filed with the
PMRB45 and the corresponding permits shall be issued by the Provincial
Governor, except small-scale mining applications within the mineral
reservations.
Thereafter, DENR Administrative Order No. 96-40, otherwise known as the
Revised Implementing Rules and Regulations of R.A. No. 7942, otherwise
known as the Philippine Mining Act of 1995, adopted on December 19, 1996,
provides that applications for Small-Scale Mining Permits shall be filed with
the Provincial Governor/City Mayor through the concerned Provincial/City
Mining Regulatory Board for areas outside the Mineral Reservations and with
the Director though the Bureau for areas within the Mineral Reservations.46
Moreover, it provides that Local Government Units shall, in coordination with
the Bureau/ Regional Offices and subject to valid and existing mining rights,
"approve applications for small-scale mining, sand and gravel, quarry x x x
and gravel permits not exceeding five (5) hectares."47
Petitioner contends that the Local Government Code of 1991, R.A. No. 7076,
DENR Administrative Orders Nos. 95-23 and 96-40 granted the DENR
Secretary the broad statutory power of control, but did not confer upon the
respondents DENR and DENR Secretary the power to reverse, abrogate,
nullify, void, cancel the permits issued by the Provincial Governor or small-
scale mining contracts entered into by the Board.
The contention does not persuade.
The settlement of disputes over conflicting claims in small-scale mining is
provided for in Section 24 of R.A. No. 7076, thus:
Sec. 24. Provincial/City Mining Regulatory Board. There is hereby created
under the direct supervision and control of the Secretary a provincial/city
mining regulatory board, herein called the Board, which shall be the
implementing agency of the Department, and shall exercise the following
powers and functions, subject to review by the Secretary:
xxxx
(e) Settle disputes, conflicts or litigations over conflicting claims within a
people's small-scale mining area, an area that is declared a small mining
area; x x x
Section 24, paragraph (e) of R.A. No. 7076 cited above is reflected in Section
22, paragraph 22.5 of the Implementing Rules and Regulations of R.A. No.
7076, to wit:
SEC. 22. Provincial/City Mining Regulatory Board. The Provincial/City
Mining Regulatory Board created under R.A. No. 7076 shall exercise the
following powers and functions, subject to review by the Secretary:
xxxx
22.5 Settles disputes, conflicts or litigations over conflicting claims within
ninety (90) days upon filing of protests or complaints; Provided, That any
aggrieved party may appeal within five (5) days from the Board's decision to
the Secretary for final resolution otherwise the same is considered final and
executory; x x x
In this case, in accordance with Section 22, paragraph 22.5 of the
Implementing Rules and Regulations of R.A. No. 7076, the AMTC filed on
July 22, 2005 with the PMRB of Bulacan a formal protest against the
Applications for Quarry Permits of Eduardo Mercado, Benedicto Cruz,
Liberato Sembrano (replaced by Lucila Valdez) and Gerardo Cruz on the
ground that the subject area was already covered by its Application for
Exploration Permit.48 However, on August 8, 2005, the PMRB issued
Resolution Nos. 05-8, 05-9, 05-10 and 05-11, resolving to submit to the
Provincial Governor of Bulacan the Applications for Small-Scale Mining
Permits of Eduardo Mercado, Benedicto Cruz, Lucila Valdez and Gerardo
Cruz for the granting/issuance of the said permits.49 On August 10, 2005, the
Provincial Governor of Bulacan issued the Small-Scale Mining Permits to
Eduardo Mercado, Benedicto Cruz, Lucila Valdez and Gerardo Cruz based
on the legal opinion of the Provincial Legal Officer and the Resolutions of the
PMRB of Bulacan.
Hence, AMTC filed an appeal with respondent DENR Secretary, appealing
from Letter-Resolution No. 05-1317 and Resolution Nos. 05-08, 05-09, 05-10
and 05-11, all dated August 8, 2005, of the PMRB of Bulacan, which
resolutions gave due course and granted, on August 10, 2005, Small-Scale
Mining Permits to Eduardo D. Mercado, Benedicto S. Cruz, Lucila Valdez
and Gerardo Cruz involving parcels of mineral land situated at Camachin,
Doa Remedios Trinidad, Bulacan.
The PMRB of Bulacan filed its Answer, stating that it is an administrative
body, created under R.A. No. 7076, which cannot be equated with the court
wherein a full-blown hearing could be conducted, but it is enough that the
parties were given the opportunity to present evidence. It asserted that the
questioned resolutions it issued were in accordance with the mining laws and
that the Small-Scale Mining Permits granted were registered ahead of
AMTC's Application for Exploration Permit. Further, the Board stated that the
Governor of Bulacan had the power to approve the Small-Scale Mining
Permits under R.A. No. 7160.
The DENR Secretary found the appeal meritorious, and resolved these
pivotal issues: (1) when is the subject mining area open for mining location
by other applicants; and (2) who among the applicants have valid
applications.1wphi1 The pertinent portion of the decision of the DENR
Secretary reads:
We agree with the ruling of the MGB Director that the area is open only to
mining location on August 11, 2004, fifteen (15) days after the receipt by
Golden Falcon on July 27, 2004 of a copy of the subject Order of July 16,
2004.1wphi1 The filing by Golden Falcon of the letter-appeal suspended the
finality of the Order of Denial issued on April 29, 1998 by the Regional
Director until the Resolution thereof on July 16, 2004.
Although the subject AQPs/SSMPs were processed in accordance with the
procedures of the PMRB, however, the AQPs were filed on February 10,
2004 when the area is still closed to mining location. Consequently, the
SSMPs granted by the PMRB and the Governor are null and void making
thereby AEP No. III-02-04 of the AMTC valid, it having been filed when the
area is already open to other mining applicants.
Records also show that the AQPs were converted into SSMPs. These are
two (2) different applications. The questioned SSMPs were issued in violation
of Section 4 of RA 7076 and beyond the authority of the Provincial Governor
pursuant to Section 43 of RA 7942 because the area was never proclaimed
as "People's Small-Scale Mining Program." Moreover, iron ore mineral is not
considered among the quarry resources.
xxxx
WHEREFORE, the Application for Exploration Permit, AEP-III-02-04 of
Atlantic Mines and Trading Corp. is declared valid and may now be given
due course. The Small-Scale Mining Permits, SSMP-B-002-05 of Gerardo
Cruz, SSMP-B-003-05 of Eduardo D. Mercado, SSMP-B-004-05 of
Benedicto S. Cruz and SSMP-B-005-05 of Lucila S. Valdez are declared
NULL AND VOID. Consequently, the said permits are hereby
CANCELLED.50
The Court finds that the decision of the DENR Secretary was rendered in
accordance with the power of review granted to the DENR Secretary in the
resolution of disputes, which is provided for in Section 24 of R.A. No. 707651
and Section 22 of its Implementing Rules and Regulations.52 It is noted that
although AMTC filed a protest with the PMRB regarding its superior and prior
Application for Exploration Permit over the Applications for Quarry Permit,
which were converted to Small-Scale Mining Permits, the PMRB did not
resolve the same, but issued Resolution Nos. 05-08 to 05-11 on August 8,
2005, resolving to submit to the Provincial Governor of Bulacan the
Applications for Small-Scale Mining Permits of Eduardo Mercado, Benedicto
Cruz, Lucila Valdez and Gerardo Cruz for the granting of the said permits.
After the Provincial Governor of Bulacan issued the Small-Scale Mining
Permits on August 10, 2005, AMTC appealed the Resolutions of the PMRB
giving due course to the granting of the Small-Scale Mining Permits by the
Provincial Governor.
Hence, the decision of the DENR Secretary, declaring that the Application for
Exploration Permit of AMTC was valid and may be given due course, and
canceling the Small-Scale Mining Permits issued by the Provincial Governor,
emanated from the power of review granted to the DENR Secretary under
R.A. No. 7076 and its Implementing Rules and Regulations. The DENR
Secretary's power to review and, therefore, decide, in this case, the issue on
the validity of the issuance of the Small-Scale Mining Permits by the
Provincial Governor as recommended by the PMRB, is a quasi-judicial
function, which involves the determination of what the law is, and what the
legal rights of the contending parties are, with respect to the matter in
controversy and, on the basis thereof and the facts obtaining, the
adjudication of their respective rights.53 The DENR Secretary exercises
quasi-judicial function under R.A. No. 7076 and its Implementing Rules and
Regulations to the extent necessary in settling disputes, conflicts or litigations
over conflicting claims. This quasi-judicial function of the DENR Secretary
can neither be equated with "substitution of judgment" of the Provincial
Governor in issuing Small-Scale Mining Permits nor "control" over the said
act of the Provincial Governor as it is a determination of the rights of AMTC
over conflicting claims based on the law.

In determining whether Section 17 (b)(3)(iii) of the Local Government Code

of 1991 and Section 24 of R.A. No. 7076 are unconstitutional, the Court has
been guided by Beltran v. The Secretary of Health, 54 which held:

The fundamental criterion is that all reasonable doubts should be resolved in

favor of the constitutionality of a statute. Every law has in its favor the
presumption of constitutionality. For a law to be nullified, it must be shown
that there is a clear and unequivocal breach of the Constitution. The ground
for nullity must be clear and beyond reasonable doubt. Those who petition
this Court to declare a law, or parts thereof, unconstitutional must clearly
establish the basis therefor. Otherwise, the petition must fail. 55

In this case, the Court finds that the grounds raised by petitioner to challenge
the constitutionality of Section 17 (b )(3)(iii) of the Local Government Code of
1991 and Section 24 'of R.A. No.7076 failed to overcome the constitutionality
of the said provisions of law.

WHEREFORE, the petition is DISMISSED for lack of merit.

No costs.

SO ORDERED.
G.R. No. 161107 March 12, 2013
HON. MA. LOURDES C. FERNANDO, in her capacity as City Mayor of
Marikina City, JOSEPHINE C. EVANGELIST A, in her capacity as Chief,
Permit Division, Office of the City Engineer, and ALFONSO ESPIRITU,
in his capacity as City Engineer of Marikina City, Petitioners,
vs.
ST. SCHOLASTICA'S COLLEGE and ST. SCHOLASTICA'S ACADEMY-
MARIKINA, INC., Respondents.
DECISION
MENDOZA, J.:
Before this Court is a petition for review on certiorari under Rule 45 of the
Rules of Court, which seeks to set aside the December 1, 2003 Decision 1 of
the Court of Appeals (CA) in CA-G.R. SP No. 75691.
The Facts
Respondents St. Scholasticas College (SSC) and St. Scholasticas
Academy-Marikina, Inc. (SSA-Marikina) are educational institutions
organized under the laws of the Republic of the Philippines, with principal
offices and business addresses at Leon Guinto Street, Malate, Manila, and at
West Drive, Marikina Heights, Marikina City, respectively.2
Respondent SSC is the owner of four (4) parcels of land measuring a total of
56,306.80 square meters, located in Marikina Heights and covered by
Transfer Certificate Title (TCT) No. 91537. Located within the property are
SSA-Marikina, the residence of the sisters of the Benedictine Order, the
formation house of the novices, and the retirement house for the elderly
sisters. The property is enclosed by a tall concrete perimeter fence built
some thirty (30) years ago. Abutting the fence along the West Drive are
buildings, facilities, and other improvements.3
The petitioners are the officials of the City Government of Marikina. On
September 30, 1994, the Sangguniang Panlungsod of Marikina City enacted
Ordinance No. 192,4 entitled "Regulating the Construction of Fences and
Walls in the Municipality of Marikina." In 1995 and 1998, Ordinance Nos.
2175 and 2006 were enacted to amend Sections 7 and 5, respectively.
Ordinance No. 192, as amended, is reproduced hereunder, as follows:
ORDINANCE No. 192
Series of 1994
ORDINANCE REGULATING THE CONSTRUCTION OF FENCES AND
WALLS IN THE MUNICIPALITY OF MARIKINA
WHEREAS, under Section 447.2 of Republic Act No. 7160 otherwise known
as the Local Government Code of 1991 empowers the Sangguniang Bayan
as the local legislative body of the municipality to "x x x Prescribe reasonable
limits and restraints on the use of property within the jurisdiction of the
municipality, x x x";
WHEREAS the effort of the municipality to accelerate its economic and
physical development, coupled with urbanization and modernization, makes
imperative the adoption of an ordinance which shall embody up-to-date and
modern technical design in the construction of fences of residential,
commercial and industrial buildings;
WHEREAS, Presidential Decree No. 1096, otherwise known as the National
Building Code of the Philippines, does not adequately provide technical
guidelines for the construction of fences, in terms of design, construction,
and criteria;
WHEREAS, the adoption of such technical standards shall provide more
efficient and effective enforcement of laws on public safety and security;
WHEREAS, it has occurred in not just a few occasions that high fences or
walls did not actually discourage but, in fact, even protected burglars,
robbers, and other lawless elements from the view of outsiders once they
have gained ingress into these walls, hence, fences not necessarily providing
security, but becomes itself a "security problem";
WHEREAS, to discourage, suppress or prevent the concealment of
prohibited or unlawful acts earlier enumerated, and as guardian of the people
of Marikina, the municipal government seeks to enact and implement rules
and ordinances to protect and promote the health, safety and morals of its
constituents;
WHEREAS, consistent too, with the "Clean and Green Program" of the
government, lowering of fences and walls shall encourage people to plant
more trees and ornamental plants in their yards, and when visible, such trees
and ornamental plants are expected to create an aura of a clean, green and
beautiful environment for Marikeos;
WHEREAS, high fences are unsightly that, in the past, people planted on
sidewalks to "beautify" the faade of their residences but, however, become
hazards and obstructions to pedestrians;
WHEREAS, high and solid walls as fences are considered "un-neighborly"
preventing community members to easily communicate and socialize and
deemed to create "boxed-in" mentality among the populace;
WHEREAS, to gather as wide-range of opinions and comments on this
proposal, and as a requirement of the Local Government Code of 1991 (R.A.
7160), the Sangguniang Bayan of Marikina invited presidents or officers of
homeowners associations, and commercial and industrial establishments in
Marikina to two public hearings held on July 28, 1994 and August 25, 1994;
WHEREAS, the rationale and mechanics of the proposed ordinance were
fully presented to the attendees and no vehement objection was presented to
the municipal government;
NOW, THEREFORE, BE IT ORDAINED BY THE SANGGUINANG BAYAN
OF MARIKINA IN SESSION DULY ASSEMBLED:
Section 1. Coverage: This Ordinance regulates the construction of all fences,
walls and gates on lots classified or used for residential, commercial,
industrial, or special purposes.
Section 2. Definition of Terms:
a. Front Yard refers to the area of the lot fronting a street, alley or
public thoroughfare.
b. Back Yard the part of the lot at the rear of the structure
constructed therein.
c. Open fence type of fence which allows a view of "thru-see" of
the inner yard and the improvements therein. (Examples: wrought
iron, wooden lattice, cyclone wire)
d. Front gate refers to the gate which serves as a passage of
persons or vehicles fronting a street, alley, or public thoroughfare.
Section 3. The standard height of fences or walls allowed under this
ordinance are as follows:
(1) Fences on the front yard shall be no more than one (1) meter in
height. Fences in excess of one (1) meter shall be of an open fence
type, at least eighty percent (80%) see-thru; and
(2) Fences on the side and back yard shall be in accordance with
the provisions of P.D. 1096 otherwise known as the National Building
Code.
Section 4. No fence of any kind shall be allowed in areas specifically
reserved or classified as parks.
Section 5. In no case shall walls and fences be built within the five (5) meter
parking area allowance located between the front monument line and the
building line of commercial and industrial establishments and educational
and religious institutions.7
Section 6. Exemption.
(1) The Ordinance does not cover perimeter walls of residential
subdivisions.
(2) When public safety or public welfare requires, the Sangguniang
Bayan may allow the construction and/or maintenance of walls
higher than as prescribed herein and shall issue a special permit or
exemption.
Section 7. Transitory Provision. Real property owners whose existing fences
and walls do not conform to the specifications herein are allowed adequate
period of time from the passage of this Ordinance within which to conform, as
follows:
(1) Residential houses eight (8) years
(2) Commercial establishments five (5) years
(3) Industrial establishments three (3) years
(4) Educational institutions five (5) years8 (public and privately
owned)
Section 8. Penalty. Walls found not conforming to the provisions of this
Ordinance shall be demolished by the municipal government at the expense
of the owner of the lot or structure.
Section 9. The Municipal Engineering Office is tasked to strictly implement
this ordinance, including the issuance of the necessary implementing
guidelines, issuance of building and fencing permits, and demolition of non-
conforming walls at the lapse of the grace period herein provided.
Section 10. Repealing Clause. All existing Ordinances and Resolutions,
Rules and Regulations inconsistent with the foregoing provisions are hereby
repealed, amended or modified.
Section 11. Separability Clause. If for any reason or reasons, local executive
orders, rules and regulations or parts thereof in conflict with this Ordinance
are hereby repealed and/or modified accordingly.
Section 12. Effectivity. This ordinance takes effect after publication.
APPROVED: September 30, 1994
(Emphases supplied)
On April 2, 2000, the City Government of Marikina sent a letter to the
respondents ordering them to demolish and replace the fence of their
Marikina property to make it 80% see-thru, and, at the same time, to move it
back about six (6) meters to provide parking space for vehicles to park.9 On
April 26, 2000, the respondents requested for an extension of time to comply
with the directive.10 In response, the petitioners, through then City Mayor
Bayani F. Fernando, insisted on the enforcement of the subject ordinance.
Not in conformity, the respondents filed a petition for prohibition with an
application for a writ of preliminary injunction and temporary restraining order
before the Regional Trial Court, Marikina, Branch 273 (RTC), docketed as
SCA Case No. 2000-381-MK.11
The respondents argued that the petitioners were acting in excess of
jurisdiction in enforcing Ordinance No. 192, asserting that such contravenes
Section 1, Article III of the 1987 Constitution. That demolishing their fence
and constructing it six (6) meters back would result in the loss of at least
1,808.34 square meters, worth about 9,041,700.00, along West Drive, and
at least 1,954.02 square meters, worth roughly 9,770,100.00, along East
Drive. It would also result in the destruction of the garbage house, covered
walk, electric house, storage house, comfort rooms, guards room, guards
post, waiting area for visitors, waiting area for students, Blessed Virgin
Shrine, P.E. area, and the multi-purpose hall, resulting in the permanent loss
of their beneficial use. The respondents, thus, asserted that the
implementation of the ordinance on their property would be tantamount to an
appropriation of property without due process of law; and that the petitioners
could only appropriate a portion of their property through eminent domain.
They also pointed out that the goal of the provisions to deter lawless
elements and criminality did not exist as the solid concrete walls of the
school had served as sufficient protection for many years.12
The petitioners, on the other hand, countered that the ordinance was a valid
exercise of police power, by virtue of which, they could restrain property
rights for the protection of public safety, health, morals, or the promotion of
public convenience and general prosperity. 13
On June 30, 2000, the RTC issued a writ of preliminary injunction, enjoining
the petitioners from implementing the demolition of the fence at SSCs
Marikina property.14
Ruling of the RTC
On the merits, the RTC rendered a Decision,15 dated October 2, 2002,
granting the petition and ordering the issuance of a writ of prohibition
commanding the petitioners to permanently desist from enforcing or
implementing Ordinance No. 192 on the respondents property.
The RTC agreed with the respondents that the order of the petitioners to
demolish the fence at the SSC property in Marikina and to move it back six
(6) meters would amount to an appropriation of property which could only be
done through the exercise of eminent domain. It held that the petitioners
could not take the respondents property under the guise of police power to
evade the payment of just compensation.
It did not give weight to the petitioners contention that the parking space was
for the benefit of the students and patrons of SSA-Marikina, considering that
the respondents were already providing for sufficient parking in compliance
with the standards under Rule XIX of the National Building Code.
It further found that the 80% see-thru fence requirement could run counter to
the respondents right to privacy, considering that the property also served as
a residence of the Benedictine sisters, who were entitled to some sense of
privacy in their affairs. It also found that the respondents were able to prove
that the danger to security had no basis in their case. Moreover, it held that
the purpose of beautification could not be used to justify the exercise of
police power.
It also observed that Section 7 of Ordinance No. 192, as amended, provided
for retroactive application. It held, however, that such retroactive effect
should not impair the respondents vested substantive rights over the
perimeter walls, the six-meter strips of land along the walls, and the building,
structures, facilities, and improvements, which would be destroyed by the
demolition of the walls and the seizure of the strips of land.
The RTC also found untenable the petitioners argument that Ordinance No.
192 was a remedial or curative statute intended to correct the defects of
buildings and structures, which were brought about by the absence or
insufficiency of laws. It ruled that the assailed ordinance was neither remedial
nor curative in nature, considering that at the time the respondents perimeter
wall was built, the same was valid and legal, and the ordinance did not refer
to any previous legislation that it sought to correct.
The RTC noted that the petitioners could still take action to expropriate the
subject property through eminent domain.
The RTC, thus, disposed:
WHEREFORE, the petition is GRANTED. The writ of prohibition is hereby
issued commanding the respondents to permanently desist from enforcing or
implementing Ordinance No. 192, Series of 1994, as amended, on
petitioners property in question located at Marikina Heights, Marikina, Metro
Manila.
No pronouncement as to costs.
SO ORDERED.16
Ruling of the CA
In its December 1, 2003 Decision, the CA dismissed the petitioners appeal
and affirmed the RTC decision.
The CA reasoned out that the objectives stated in Ordinance No. 192 did not
justify the exercise of police power, as it did not only seek to regulate, but
also involved the taking of the respondents property without due process of
law. The respondents were bound to lose an unquantifiable sense of
security, the beneficial use of their structures, and a total of 3,762.36 square
meters of property. It, thus, ruled that the assailed ordinance could not be
upheld as valid as it clearly invaded the personal and property rights of the
respondents and "[f]or being unreasonable, and undue restraint of trade." 17
It noted that although the petitioners complied with procedural due process in
enacting Ordinance No. 192, they failed to comply with substantive due
process. Hence, the failure of the respondents to attend the public hearings
in order to raise objections did not amount to a waiver of their right to
question the validity of the ordinance.
The CA also shot down the argument that the five-meter setback provision
for parking was a legal easement, the use and ownership of which would
remain with, and inure to, the benefit of the respondents for whom the
easement was primarily intended. It found that the real intent of the setback
provision was to make the parking space free for use by the public,
considering that such would cease to be for the exclusive use of the school
and its students as it would be situated outside school premises and beyond
the school administrations control.
In affirming the RTC ruling that the ordinance was not a curative statute, the
CA found that the petitioner failed to point out any irregularity or invalidity in
the provisions of the National Building Code that required correction or cure.
It noted that any correction in the Code should be properly undertaken by the
Congress and not by the City Council of Marikina through an ordinance.
The CA, thus, disposed:
WHEREFORE, all foregoing premises considered, the instant appeal is
DENIED.1wphi1 The October 2, 2002 Decision and the January 13, 2003
Order of the Regional Trial Court (RTC) of Marikina City, Branch 273,
granting petitioners-appellees petition for Prohibition in SCA Case No. 2000-
381-MK are hereby AFFIRMED.
SO ORDERED.18
Aggrieved by the decision of the CA, the petitioners are now before this
Court presenting the following
ASSIGNMENT OF ERRORS
1. WHETHER OR NOT THE HONORABLE COURT OF APPEALS
ERRED IN DECLARING THAT CITY ORDINANCE NO. 192,
SERIES OF 1994 IS NOT A VALID EXERCISE OF POLICE
POWER;
2. WHETHER OR NOT THE HONORABLE COURT OF APPEALS
ERRED IN RULING THAT THE AFOREMENTIONED ORDINANCE
IS AN EXERCISE OF THE CITY OF THE POWER OF EMINENT
DOMAIN;
3. WHETHER OR NOT THE HONORABLE COURT OF APPEALS
ERRED IN DECLARING THAT THE CITY VIOLATED THE DUE
PROCESS CLAUSE IN IMPLEMENTING ORDINANCE NO. 192,
SERIES OF 1994; AND
 4. WHETHER OR NOT THE HONORABLE COURT OF APPEALS
ERRED IN RULING THAT THE ABOVE-MENTIONED ORDINANCE
CANNOT BE GIVEN RETROACTIVE APPLICATION.19
In this case, the petitioners admit that Section 5 of the assailed ordinance,
pertaining to the five-meter setback requirement is, as held by the lower
courts, invalid.20 Nonetheless, the petitioners argue that such invalidity was
subsequently cured by Zoning Ordinance No. 303, series of 2000. They also
contend that Section 3, relating to the 80% see-thru fence requirement, must
be complied with, as it remains to be valid.
Ruling of the Court
The ultimate question before the Court is whether Sections 3.1 and 5 of
Ordinance No. 192 are valid exercises of police power by the City
Government of Marikina.
"Police power is the plenary power vested in the legislature to make statutes
and ordinances to promote the health, morals, peace, education, good order
or safety and general welfare of the people."21 The State, through the
legislature, has delegated the exercise of police power to local government
units, as agencies of the State. This delegation of police power is embodied
in Section 1622 of the Local Government Code of 1991 (R.A. No. 7160),
known as the General Welfare Clause,23 which has two branches. "The first,
known as the general legislative power, authorizes the municipal council to
enact ordinances and make regulations not repugnant to law, as may be
necessary to carry into effect and discharge the powers and duties conferred
upon the municipal council by law. The second, known as the police power
proper, authorizes the municipality to enact ordinances as may be necessary
and proper for the health and safety, prosperity, morals, peace, good order,
comfort, and convenience of the municipality and its inhabitants, and for the
protection of their property."24
White Light Corporation v. City of Manila,25 discusses the test of a valid
ordinance:
The test of a valid ordinance is well established. A long line of decisions
including City of Manila has held that for an ordinance to be valid, it must not
only be within the corporate powers of the local government unit to enact and
pass according to the procedure prescribed by law, it must also conform to
the following substantive requirements: (1) must not contravene the
Constitution or any statute; (2) must not be unfair or oppressive; (3) must not
be partial or discriminatory; (4) must not prohibit but may regulate trade; (5)
must be general and consistent with public policy; and (6) must not be
unreasonable.26
Ordinance No. 192 was passed by the City Council of Marikina in the
apparent exercise of its police power. To successfully invoke the exercise of
police power as the rationale for the enactment of an ordinance and to free it
from the imputation of constitutional infirmity, two tests have been used by
the Court the rational relationship test and the strict scrutiny test:
We ourselves have often applied the rational basis test mainly in analysis of
equal protection challenges. Using the rational basis examination, laws or
ordinances are upheld if they rationally further a legitimate governmental
interest. Under intermediate review, governmental interest is extensively
examined and the availability of less restrictive measures is considered.
Applying strict scrutiny, the focus is on the presence of compelling, rather
than substantial, governmental interest and on the absence of less restrictive
means for achieving that interest.27
Even without going to a discussion of the strict scrutiny test, Ordinance No.
192, series of 1994 must be struck down for not being reasonably necessary
to accomplish the Citys purpose. More importantly, it is oppressive of private
rights.
Under the rational relationship test, an ordinance must pass the following
requisites as discussed in Social Justice Society (SJS) v. Atienza, Jr.: 28
As with the State, local governments may be considered as having properly
exercised their police power only if the following requisites are met: (1) the
interests of the public generally, as distinguished from those of a particular
class, require its exercise and (2) the means employed are reasonably
necessary for the accomplishment of the purpose and not unduly oppressive
upon individuals. In short, there must be a concurrence of a lawful subject
and lawful method.29
Lacking a concurrence of these two requisites, the police power measure
shall be struck down as an arbitrary intrusion into private rights and a
violation of the due process clause.30
Section 3.1 and 5 of the assailed ordinance are pertinent to the issue at
hand, to wit:
Section 3. The standard height of fences of walls allowed under this
ordinance are as follows:
(1) Fences on the front yard shall be no more than one (1) meter in height.
Fences in excess of one (1) meter shall be an open fence type, at least
eighty percent (80%) see-thru;
xxx xxx xxx
Section 5. In no case shall walls and fences be built within the five (5) meter
parking area allowance located between the front monument line and the
building line of commercial and industrial establishments and educational
and religious institutions.
The respondents, thus, sought to prohibit the petitioners from requiring them
to (1) demolish their existing concrete wall, (2) build a fence (in excess of one
meter) which must be 80% see-thru, and (3) build the said fence six meters
back in order to provide a parking area.
Setback Requirement
The Court first turns its attention to Section 5 which requires the five-meter
setback of the fence to provide for a parking area. The petitioners initially
argued that the ownership of the parking area to be created would remain
with the respondents as it would primarily be for the use of its students and
faculty, and that its use by the public on non-school days would only be
incidental. In their Reply, however, the petitioners admitted that Section 5
was, in fact, invalid for being repugnant to the Constitution.31
The Court agrees with the latter position.
The Court joins the CA in finding that the real intent of the setback
requirement was to make the parking space free for use by the public,
considering that it would no longer be for the exclusive use of the
respondents as it would also be available for use by the general public.
Section 9 of Article III of the 1987 Constitution, a provision on eminent
domain, provides that private property shall not be taken for public use
without just compensation.
The petitioners cannot justify the setback by arguing that the ownership of
the property will continue to remain with the respondents. It is a settled rule
that neither the acquisition of title nor the total destruction of value is
essential to taking. In fact, it is usually in cases where the title remains with
the private owner that inquiry should be made to determine whether the
impairment of a property is merely regulated or amounts to a compensable
taking.32 The Court is of the view that the implementation of the setback
requirement would be tantamount to a taking of a total of 3,762.36 square
meters of the respondents private property for public use without just
compensation, in contravention to the Constitution.
Anent the objectives of prevention of concealment of unlawful acts and "un-
neighborliness," it is obvious that providing for a parking area has no logical
connection to, and is not reasonably necessary for, the accomplishment of
these goals.
Regarding the beautification purpose of the setback requirement, it has long
been settled that the State may not, under the guise of police power,
permanently divest owners of the beneficial use of their property solely to
preserve or enhance the aesthetic appearance of the community. 33 The
Court, thus, finds Section 5 to be unreasonable and oppressive as it will
substantially divest the respondents of the beneficial use of their property
solely for aesthetic purposes. Accordingly, Section 5 of Ordinance No. 192 is
invalid.
The petitioners, however, argue that the invalidity of Section 5 was properly
cured by Zoning Ordinance No. 303,34 Series of 2000, which classified the
respondents property to be within an institutional zone, under which a five-
meter setback has been required.
The petitioners are mistaken. Ordinance No. 303, Series of 2000, has no
bearing to the case at hand.
The Court notes with displeasure that this argument was only raised for the
first time on appeal in this Court in the petitioners Reply. Considering that
Ordinance No. 303 was enacted on December 20, 2000, the petitioners
could very well have raised it in their defense before the RTC in 2002. The
settled rule in this jurisdiction is that a party cannot change the legal theory of
this case under which the controversy was heard and decided in the trial
court. It should be the same theory under which the review on appeal is
conducted. Points of law, theories, issues, and arguments not adequately
brought to the attention of the lower court will not be ordinarily considered by
a reviewing court, inasmuch as they cannot be raised for the first time on
appeal. This will be offensive to the basic rules of fair play, justice, and due
process.35
Furthermore, the two ordinances have completely different purposes and
subjects. Ordinance No. 192 aims to regulate the construction of fences,
while Ordinance No. 303 is a zoning ordinance which classifies the city into
specific land uses. In fact, the five-meter setback required by Ordinance No.
303 does not even appear to be for the purpose of providing a parking area.
By no stretch of the imagination, therefore, can Ordinance No. 303, "cure"
Section 5 of Ordinance No. 192.
In any case, the clear subject of the petition for prohibition filed by the
respondents is Ordinance No. 192 and, as such, the precise issue to be
determined is whether the petitioners can be prohibited from enforcing the
said ordinance, and no other, against the respondents.
80% See-Thru Fence Requirement
The petitioners argue that while Section 5 of Ordinance No. 192 may be
invalid, Section 3.1 limiting the height of fences to one meter and requiring
fences in excess of one meter to be at least 80% see-thru, should remain
valid and enforceable against the respondents.
The Court cannot accommodate the petitioner.
For Section 3.1 to pass the rational relationship test, the petitioners must
show the reasonable relation between the purpose of the police power
measure and the means employed for its accomplishment, for even under
the guise of protecting the public interest, personal rights and those
pertaining to private property will not be permitted to be arbitrarily invaded.36
The principal purpose of Section 3.1 is "to discourage, suppress or prevent
the concealment of prohibited or unlawful acts." The ultimate goal of this
objective is clearly the prevention of crime to ensure public safety and
security. The means employed by the petitioners, however, is not reasonably
necessary for the accomplishment of this purpose and is unduly oppressive
to private rights. The petitioners have not adequately shown, and it does not
appear obvious to this Court, that an 80% see-thru fence would provide
better protection and a higher level of security, or serve as a more
satisfactory criminal deterrent, than a tall solid concrete wall. It may even be
argued that such exposed premises could entice and tempt would-be
criminals to the property, and that a see-thru fence would be easier to bypass
and breach. It also appears that the respondents concrete wall has served
as more than sufficient protection over the last 40 years. `
As to the beautification purpose of the assailed ordinance, as previously
discussed, the State may not, under the guise of police power, infringe on
private rights solely for the sake of the aesthetic appearance of the
community. Similarly, the Court cannot perceive how a see-thru fence will
foster "neighborliness" between members of a community.
Compelling the respondents to construct their fence in accordance with the
assailed ordinance is, thus, a clear encroachment on their right to property,
which necessarily includes their right to decide how best to protect their
property.
It also appears that requiring the exposure of their property via a see-thru
fence is violative of their right to privacy, considering that the residence of the
Benedictine nuns is also located within the property. The right to privacy has
long been considered a fundamental right guaranteed by the Constitution
that must be protected from intrusion or constraint. The right to privacy is
essentially the right to be let alone,37 as governmental powers should stop
short of certain intrusions into the personal life of its citizens.38 It is inherent in
the concept of liberty, enshrined in the Bill of Rights (Article III) in Sections 1,
2, 3(1), 6, 8, and 17, Article III of the 1987 Constitution.39
The enforcement of Section 3.1 would, therefore, result in an undue
interference with the respondents rights to property and privacy. Section 3.1
of Ordinance No. 192 is, thus, also invalid and cannot be enforced against
the respondents.
No Retroactivity
Ordinance No. 217 amended Section 7 of Ordinance No. 192 by including
the regulation of educational institutions which was unintentionally omitted,
and giving said educational institutions five (5) years from the passage of
Ordinance No. 192 (and not Ordinance No. 217) to conform to its
provisions.40 The petitioners argued that the amendment could be
retroactively applied because the assailed ordinance is a curative statute
which is retroactive in nature.
Considering that Sections 3.1 and 5 of Ordinance No. 192 cannot be
enforced against the respondents, it is no longer necessary to rule on the
issue of retroactivity. The Court shall, nevertheless, pass upon the issue for
the sake of clarity.
"Curative statutes are enacted to cure defects in a prior law or to validate
legal proceedings which would otherwise be void for want of conformity with
certain legal requirements. They are intended to supply defects, abridge
superfluities and curb certain evils. They are intended to enable persons to
carry into effect that which they have designed or intended, but has failed of
expected legal consequence by reason of some statutory disability or
irregularity in their own action. They make valid that which, before the
enactment of the statute was invalid. Their purpose is to give validity to acts
done that would have been invalid under existing laws, as if existing laws
have been complied with. Curative statutes, therefore, by their very essence,
are retroactive."41
The petitioners argue that Ordinance No. 192 is a curative statute as it aims implementing Sections 3.1 and 5 of Ordinance No. 192, Series of 1994, as
to correct or cure a defect in the National Building Code, namely, its failure to amended, on the petitioners' property in question located in Marikina
provide for adequate guidelines for the construction of fences. They Heights, Marikina, Metro Manila.
ultimately seek to remedy an insufficiency in the law. In aiming to cure this
insufficiency, the petitioners attempt to add lacking provisions to the National No pronouncement as to costs.
Building Code. This is not what is contemplated by curative statutes, which
intend to correct irregularities or invalidity in the law. The petitioners fail to
SO ORDERED.
point out any irregular or invalid provision. As such, the assailed ordinance
cannot qualify as curative and retroactive in nature.

At any rate, there appears to be no insufficiency in the National Building

Code with respect to parking provisions in relation to the issue of the
respondents. Paragraph 1.16.1, Rule XIX of the Rules and Regulations of the
said code requires an educational institution to provide one parking slot for
every ten classrooms. As found by the lower courts, the respondents provide
a total of 76 parking slots for their 80 classrooms and, thus, had more than
sufficiently complied with the law.

Ordinance No. 192, as amended, is, therefore, not a curative statute which
may be applied retroactively.

Separability

Sections 3.1 and 5 of Ordinance No. 192, as amended, are, thus, invalid and
cannot be enforced against the respondents. Nonetheless, "the general rule
is that where part of a statute is void as repugnant to the Constitution, while
another part is valid, the valid portion, if susceptible to being separated from
the invalid, may stand and be enforced."42 Thus, the other sections of the
assailed ordinance remain valid and enforceable.

Conclusion

Considering the invalidity of Sections 3.1 and 5, it is clear that the petitioners
were acting in excess of their jurisdiction in enforcing Ordinance No. 192
against the respondents. The CA was correct in affirming the decision of the
RTC in issuing the writ of prohibition. The petitioners must permanently
desist from enforcing Sections 3.1 and 5 of the assailed ordinance on the
respondents' property in Marikina City.

WHEREFORE, the petition is DENIED. The October 2, 2002 Decision of the

Regional Trial Court in SCA Case No. 2000-381-MK is AFFIRMED but
MODIFIED to read as follows:

WHEREFORE, the petition is GRANTED. The writ of prohibition is hereby

issued commanding the respondents to permanently desist from enforcing or
G.R. No. 193237 October 9, 2012
DOMINADOR G. JALOSJOS, JR., Petitioner,
vs.
COMMISSION ON ELECTIONS and AGAPITO J. CARDINO, Respondents.
x-----------------------x
G.R. No. 193536
AGAPITO J. CARDINO, Petitioner,
vs.
DOMINADOR G. JALOSJOS, JR., and COMMISSION ON ELECTIONS,
Respondents.
DECISION
CARPIO, J.:
These are two special civil actions for certiorari1 questioning the resolutions
of the Commission on Elections (COMELEC) in SPA No. 09-076 (DC). In
G.R. No. 193237, Dominador G. Jalosjos, Jr. (Jalosjos) seeks to annul the 10
May 2010 Resolution2 of the COMELEC First Division and the 11 August
2010 Resolution3 of the COMELEC En Banc, which both ordered the
cancellation of his certificate of candidacy on the ground of false material
representation. In G.R. No. 193536, Agapito J. Cardino (Cardino) challenges
the 11 August 2010 Resolution of the COMELEC En Banc, which applied the
rule on succession under the Local Government Code in filling the vacancy in
the Office of the Mayor of Dapitan City, Zamboanga del Norte created by the
cancellation of Jalosjos certificate of candidacy.
The Facts
Both Jalosjos and Cardino were candidates for Mayor of Dapitan City,
Zamboanga del Norte in the May 2010 elections. Jalosjos was running for his
third term. Cardino filed on 6 December 2009 a petition under Section 78 of
the Omnibus Election Code to deny due course and to cancel the certificate
of candidacy of Jalosjos. Cardino asserted that Jalosjos made a false
material representation in his certificate of candidacy when he declared
under oath that he was eligible for the Office of Mayor.
Cardino claimed that long before Jalosjos filed his certificate of candidacy,
Jalosjos had already been convicted by final judgment for robbery and
sentenced to prisin mayor by the Regional Trial Court, Branch 18 (RTC) of
Cebu City, in Criminal Case No. CCC-XIV-140-CEBU. Cardino asserted that
Jalosjos has not yet served his sentence. Jalosjos admitted his conviction but
stated that he had already been granted probation. Cardino countered that
the RTC revoked Jalosjos probation in an Order dated 19 March 1987.
Jalosjos refuted Cardino and stated that the RTC issued an Order dated 5
February 2004 declaring that Jalosjos had duly complied with the order of
probation. Jalosjos further stated that during the 2004 elections the
COMELEC denied a petition for disqualification filed against him on the same
grounds.4
The COMELEC En Banc narrated the circumstances of Jalosjos criminal
record as follows:
As backgrounder, Jalosjos and three (3) others were accused of the crime of
robbery on January 22, 1969 in Cebu City. On April 30, 1970, Judge
Francisco Ro. Cupin of the then Circuit Criminal Court of Cebu City found
him and his co-accused guilty of robbery and sentenced them to suffer the
penalty of prision correccional minimum to prision mayor maximum. Jalosjos
appealed this decision to the Court of Appeals but his appeal was dismissed
on August 9, 1973. It was only after a lapse of several years or more
specifically on June 17, 1985 that Jalosjos filed a Petition for Probation
before the RTC Branch 18 of Cebu City which was granted by the court. But
then, on motion filed by his Probation Officer, Jalosjos probation was
revoked by the RTC Cebu City on March 19, 1987 and the corresponding
warrant for his arrest was issued. Surprisingly, on December 19, 2003,
Parole and Probation Administrator Gregorio F. Bacolod issued a
Certification attesting that respondent Jalosjos, Jr., had already fulfilled the
terms and conditions of his probation. This Certification was the one used by
respondent Jalosjos to secure the dismissal of the disqualification case filed
against him by Adasa in 2004, docketed as SPA No. 04-235.
This prompted Cardino to call the attention of the Commission on the
decision of the Sandiganbayan dated September 29, 2008 finding Gregorio
F. Bacolod, former Administrator of the Parole and Probation Administration,
guilty of violating Section 3(e) of R.A. 3019 for issuing a falsified Certification
on December 19, 2003 attesting to the fact that respondent Jalosjos had fully
complied with the terms and conditions of his probation. A portion of the
decision of the Sandiganbayan is quoted hereunder:
The Court finds that the above acts of the accused gave probationer
Dominador Jalosjos, Jr., unwarranted benefits and advantage because the
subject certification, which was issued by the accused without adequate or
official support, was subsequently utilized by the said probationer as basis of
the Urgent Motion for Reconsideration and to Lift Warrant of Arrest that he
filed with the Regional Trial Court of Cebu City, which prompted the said
court to issue the Order dated February 5, 2004 in Crim. Case No. CCC-XIV-
140-CEBU, declaring that said probationer has complied with the order of
probation and setting aside its Order of January 16, 2004 recalling the
warrant or [sic] arrest; and that said Certification was also used by the said
probationer and became the basis for the Commission on Elections to deny
in its Resolution of August 2, 2004 the petition or [sic] private complainant
James Adasa for the disqualification of the probationer from running for re-
election as Mayor of Dapitan City in the National and Local Elections of
2004.5
The COMELECs Rulings
On 10 May 2010, the COMELEC First Division granted Cardinos petition and
cancelled Jalosjos certificate of candidacy. The COMELEC First Division
concluded that "Jalosjos has indeed committed material misrepresentation in
his certificate of candidacy when he declared, under oath, that he is eligible
for the office he seeks to be elected to when in fact he is not by reason of a
final judgment in a criminal case, the sentence of which he has not yet
served."6 The COMELEC First Division found that Jalosjos certificate of
compliance of probation was fraudulently issued; thus, Jalosjos has not yet
served his sentence. The penalty imposed on Jalosjos was the indeterminate
sentence of one year, eight months and twenty days of prisin correccional
as minimum, to four years, two months and one day of prisin mayor as
maximum. The COMELEC First Division ruled that Jalosjos "is not eligible by
reason of his disqualification as provided for in Section 40(a) of Republic Act
No. 7160."7
On 11 August 2010, the COMELEC En Banc denied Jalosjos motion for
reconsideration. The pertinent portions of the 11 August 2010 Resolution
read:
With the proper revocation of Jalosjos earlier probation and a clear showing
that he has not yet served the terms of his sentence, there is simply no basis
for Jalosjos to claim that his civil as well as political rights have been violated.
Having been convicted by final judgment,
Jalosjos is disqualified to run for an elective position or to hold public office.
His proclamation as the elected mayor in the May 10, 2010 election does not
deprive the Commission of its authority to resolve the present petition to its
finality, and to oust him from the office he now wrongfully holds.
WHEREFORE, in view of the foregoing, the Motion for Reconsideration is
denied for utter lack of merit. Jalosjos is hereby OUSTED from office and
ordered to CEASE and DESIST from occupying and discharging the
functions of the Office of the Mayor of Dapitan City, Zamboanga. Let the
provisions of the Local Government Code on succession apply.
SO ORDERED.8
Jalosjos filed his petition on 25 August 2010, docketed as G.R. No. 193237,
while Cardino filed his petition on 17 September 2010, docketed as G.R. No.
193536.
On 22 February 2011, this Court issued a Resolution dismissing G.R. No.
193237.
WHEREFORE, the foregoing premises considered, the Petition for Certiorari
is DISMISSED. The assailed Resolution dated May 10, 2010 and Resolution
dated August 11, 2010 of the Commission on Elections in SPA Case No. 09-
076 (DC) are hereby AFFIRMED.9
Cardino filed a Manifestation on 17 March 2011 praying that this Court take
judicial notice of its resolution in G.R. No. 193237. Jalosjos filed a Motion for
Reconsideration10 on 22 March 2011. On 29 March 2011, this Court
resolved11 to consolidate G.R. No. 193536 with G.R. No. 193237.Jalosjos
then filed a Manifestation on 1 June 2012 which stated that "he has resigned
from the position of Mayor of the City of Dapitan effective 30 April 2012,
which resignation was accepted by the Provincial Governor of Zamboanga
del Norte, Atty. Rolando E. Yebes."12 Jalosjos resignation was made "in
deference with the provision of the Omnibus Election Code in relation to his
candidacy as Provincial Governor of Zamboanga del Sur in May 2013."13
These cases are not rendered moot by Jalosjos resignation. In resolving
Jalosjos Motion for Reconsideration in G.R. No. 193237 and Cardinos
Petition in G.R. No. 193536, we address not only Jalosjos eligibility to run for
public office and the consequences of the cancellation of his certificate of
candidacy, but also COMELECs constitutional duty to enforce and
administer all laws relating to the conduct of elections.
The Issues
In G.R. No. 193237, Jalosjos argues that the COMELEC committed grave
abuse of discretion amounting to lack or excess of jurisdiction when it (1)
ruled that Jalosjos probation was revoked; (2) ruled that Jalosjos was
disqualified to run as candidate for Mayor of Dapitan City, Zamboanga del
Norte; and (3) cancelled Jalosjos certificate of candidacy without making a
finding that Jalosjos committed a deliberate misrepresentation as to his
qualifications, as Jalosjos relied in good faith upon a previous COMELEC
decision declaring him eligible for the same position from which he is now
being ousted. Finally, the Resolutions dated 10 May 2010 and 11 August
2010 were issued in violation of the COMELEC Rules of Procedure.
In G.R. No. 193536, Cardino argues that the COMELEC acted with grave
abuse of discretion amounting to lack or excess of jurisdiction when it added
to the dispositive portion of its 11 August 2010 Resolution that the provisions
of the Local Government Code on succession should apply.
This Courts Ruling
The perpetual special disqualification against Jalosjos arising from his
criminal conviction by final judgment is a material fact involving eligibility
which is a proper ground for a petition under Section 78 of the Omnibus
Election Code. Jalosjos certificate of candidacy was void from the start since
he was not eligible to run for any public office at the time he filed his
certificate of candidacy. Jalosjos was never a candidate at any time, and all
votes for Jalosjos were stray votes. As a result of Jalosjos certificate of
candidacy being void ab initio, Cardino, as the only qualified candidate,
actually garnered the highest number of votes for the position of Mayor.
The dissenting opinions affirm with modification the 10 May 2010 Resolution
of the COMELEC First Division and the 11 August 2010 Resolution of the
COMELEC En Banc. The dissenting opinions erroneously limit the remedy
against Jalosjos to disqualification under Section 68 of the Omnibus Election
Code and apply the rule on succession under the Local Government Code.
A false statement in a certificate of candidacy that a candidate is eligible to
run for public office is a false material representation which is a ground for a
petition under Section 78 of the same Code. Sections 74 and 78 read:
Sec. 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; if for Member of the
Batasang Pambansa, the province, including its component cities, highly
urbanized city or district or sector which he seeks to represent; the political
party to which he belongs; civil status; his date of birth; residence; his post
office address for all election purposes; his profession or occupation; that he
will support and defend the Constitution of the Philippines and will maintain
true faith and allegiance thereto; that he will obey the laws, legal orders, and
decrees promulgated by the duly constituted authorities; that he is not a
permanent resident or immigrant to a foreign country; that the obligation
imposed by his oath is assumed voluntarily, without mental reservation or
purpose of evasion; and that the facts stated in the certificate of candidacy
are true to the best of his knowledge.
Sec. 78. Petition to deny due course to or cancel a certificate of candidacy.
A verified petition seeking to deny due course or to cancel a certificate of
candidacy may be filed by the person exclusively on the ground that any
material representation contained therein as required under Section 74
hereof is false. The petition may be filed at any time not later than twenty-five
days from the time of the filing of the certificate of candidacy and shall be
decided, after due notice and hearing, not later than fifteen days before the
election. (Emphasis supplied)
Section 74 requires the candidate to state under oath in his certificate of
candidacy "that he is eligible for said office." A candidate is eligible if he has
a right to run for the public office.14 If a candidate is not actually eligible
because he is barred by final judgment in a criminal case from running for
public office, and he still states under oath in his certificate of candidacy that
he is eligible to run for public office, then the candidate clearly makes a false
material representation that is a ground for a petition under Section 78.
A sentence of prisin mayor by final judgment is a ground for disqualification
under Section 40 of the Local Government Code and under Section 12 of the
Omnibus Election Code. It is also a material fact involving the eligibility of a
candidate under Sections 74 and 78 of the Omnibus Election Code. Thus, a
person can file a petition under Section 40 of the Local Government Code or
under either Section 12 or Section 78 of the Omnibus Election Code. The
pertinent provisions read:
Section 40, Local Government Code:
Sec. 40. Disqualifications. - The following persons are disqualified from
running for any elective local position:
(a) Those sentenced by final judgment for an offense involving moral
turpitude or for an offense punishable by one (1) year or more of
imprisonment, within two (2) years after serving sentence;
(b) Those removed from office as a result of an administrative case;
(c) Those convicted by final judgment for violating the oath of
allegiance to the Republic;
(d) Those with dual citizenship;
(e) Fugitives from justice in criminal or non-political cases here or
abroad;
(f) Permanent residents in a foreign country or those who have
acquired the right to reside abroad and continue to avail of the same
right after the effectivity of this Code; and
 (g) The insane or feeble-minded.
Section 12, Omnibus Election Code:
Sec. 12. Disqualifications. Any person who has been declared by
competent authority insane or incompetent, or has been sentenced by final
judgment for subversion, insurrection, rebellion or for any offense for which
he was sentenced to a penalty of more than eighteen months or for a crime
involving moral turpitude, shall be disqualified to be a candidate and to hold
any office, unless he has been given plenary pardon or granted amnesty.
The disqualifications to be a candidate herein provided shall be deemed
removed upon the declaration by competent authority that said insanity or
incompetence had been removed or after the expiration of a period of five
years from his service of sentence, unless within the same period he again
becomes disqualified.
Section 68, Omnibus Election Code:
Sec. 68. Disqualifications. Any candidate who, in an action or protest in
which he is a party is declared by final decision by a competent court guilty
of, or found by the Commission of having (a) given money or other material
consideration to influence, induce or corrupt the voters or public officials
performing electoral functions; (b) committed acts of terrorism to enhance his
candidacy; (c) spent in his election campaign an amount in excess of that
allowed by this Code; (d) solicited, received or made any contribution
prohibited under Sections 89, 95, 96, 97 and 104; or (e) violated any of
Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc, sub-
paragraph 6, shall be disqualified from continuing as a candidate, or if he has
been elected, from holding the office. Any person who is a permanent
resident of or an immigrant to a foreign country shall not be qualified to run
for any elective office under this Code, unless said person has waived his
status as permanent resident or immigrant of a foreign country in accordance
with the residence requirement provided for in the election laws.
Revised Penal Code:
Art. 27. Reclusion perpetua. x x x
Prisin mayor and temporary disqualification. The duration of the penalties
of prisin mayor and temporary disqualification shall be from six years and
one day to twelve years, except when the penalty of disqualification is
imposed as an accessory penalty, in which case, it shall be that of the
principal penalty.
xxxx
Art. 30. Effects of the penalties of perpetual or temporary absolute
disqualification. The penalties of perpetual or temporary absolute
disqualification for public office shall produce the following effects:
1. The deprivation of the public offices and employments which the
offender may have held, even if conferred by popular election.
2. The deprivation of the right to vote in any election for any popular
elective office or to be elected to such office.
3. The disqualification for the offices or public employments and for
the exercise of any of the rights mentioned.
In case of temporary disqualification, such disqualification as is
comprised in paragraphs 2 and 3 of this article shall last during the
term of the sentence.
4. The loss of all rights to retirement pay or other pension for any
office formerly held.
Art. 31. Effects of the penalties of perpetual or temporary special
disqualification. The penalties of perpetual or temporary special
disqualification for public office, profession or calling shall produce the
following effects:
1. The deprivation of the office, employment, profession or calling
affected.
2. The disqualification for holding similar offices or employments
either perpetually or during the term of the sentence, according to
the extent of such disqualification.
Art. 32. Effects of the penalties of perpetual or temporary special
disqualification for the exercise of the right of suffrage. The perpetual or
temporary special disqualification for the exercise of the right of suffrage shall
deprive the offender perpetually or during the term of the sentence,
according to the nature of said penalty, of the right to vote in any popular
election for any public office or to be elected to such office. Moreover, the
offender shall not be permitted to hold any public office during the period of
his disqualification.
Art. 42. Prisin mayor its accessory penalties. The penalty of prisin
mayor shall carry with it that of temporary absolute disqualification and that of
perpetual special disqualification from the right of suffrage which the offender
shall suffer although pardoned as to the principal penalty, unless the same
shall have been expressly remitted in the pardon. (Emphasis supplied)
The penalty of prisin mayor automatically carries with it, by operation of
law,15 the accessory penalties of temporary absolute disqualification and
perpetual special disqualification. Under Article 30 of the Revised Penal
Code, temporary absolute disqualification produces the effect of "deprivation
of the right to vote in any election for any popular elective office or to be
elected to such office." The duration of the temporary absolute
disqualification is the same as that of the principal penalty. On the other
hand, under Article 32 of the Revised Penal Code perpetual special
disqualification means that "the offender shall not be permitted to hold any
public office during the period of his disqualification," which is perpetually.
Both temporary absolute disqualification and perpetual special
disqualification constitute ineligibilities to hold elective public office. A person
suffering from these ineligibilities is ineligible to run for elective public office,
and commits a false material representation if he states in his certificate of
candidacy that he is eligible to so run.
In Lacuna v. Abes,16 the Court, speaking through Justice J.B.L. Reyes,
explained the import of the accessory penalty of perpetual special
disqualification:
On the first defense of respondent-appellee Abes, it must be remembered
that appellees conviction of a crime penalized with prisin mayor which
carried the accessory penalties of temporary absolute disqualification and
perpetual special disqualification from the right of suffrage (Article 42,
Revised Penal Code); and Section 99 of the Revised Election Code
disqualifies a person from voting if he had been sentenced by final judgment
to suffer one year or more of imprisonment.
The accessory penalty of temporary absolute disqualification disqualifies the
convict for public office and for the right to vote, such disqualification to last
only during the term of the sentence (Article 27, paragraph 3, & Article 30,
Revised Penal Code) that, in the case of Abes, would have expired on 13
October 1961.
But this does not hold true with respect to the other accessory penalty of
perpetual special disqualification for the exercise of the right of suffrage. This
accessory penalty deprives the convict of the right to vote or to be elected to
or hold public office perpetually, as distinguished from temporary special
disqualification, which lasts during the term of the sentence. Article 32,
Revised Penal Code, provides:
Art. 32. Effects of the penalties of perpetual or temporary special
disqualification for the exercise of the right of suffrage. The perpetual or
temporary special disqualification for the exercise of the right of suffrage shall
deprive the offender perpetually or during the term of the sentence,
according to the nature of said penalty, of the right to vote in any popular
election for any public office or to be elected to such office. Moreover, the
offender shall not be permitted to hold any public office during the period of
disqualification.
The word "perpetually" and the phrase "during the term of the sentence"
should be applied distributively to their respective antecedents; thus, the
word "perpetually" refers to the perpetual kind of special disqualification,
while the phrase "during the term of the sentence" refers to the temporary
special disqualification. The duration between the perpetual and the
temporary (both special) are necessarily different because the provision,
instead of merging their durations into one period, states that such duration is
"according to the nature of said penalty" which means according to
whether the penalty is the perpetual or the temporary special disqualification.
(Emphasis supplied)
Clearly, Lacuna instructs that the accessory penalty of perpetual special
disqualification "deprives the convict of the right to vote or to be elected to or
hold public office perpetually."
The accessory penalty of perpetual special disqualification takes effect
immediately once the judgment of conviction becomes final. The effectivity of
this accessory penalty does not depend on the duration of the principal
penalty, or on whether the convict serves his jail sentence or not. The last
sentence of Article 32 states that "the offender shall not be permitted to hold
any public office during the period of his perpetual special disqualification."
Once the judgment of conviction becomes final, it is immediately executory.
Any public office that the convict may be holding at the time of his conviction
becomes vacant upon finality of the judgment, and the convict becomes
ineligible to run for any elective public office perpetually. In the case of
Jalosjos, he became ineligible perpetually to hold, or to run for, any elective
public office from the time his judgment of conviction became final.
Perpetual special disqualification is a ground for a petition under Section 78
of the Omnibus Election Code because this accessory penalty is an
ineligibility, which means that the convict is not eligible to run for public office,
contrary to the statement that Section 74 requires him to state under oath. As
used in Section 74, the word "eligible" means having the right to run for
elective public office, that is, having all the qualifications and none of the
ineligibilities to run for public office. As this Court held in Fermin v.
Commission on Elections,17 the false material representation may refer to
"qualifications or eligibility." One who suffers from perpetual special
disqualification is ineligible to run for public office. If a person suffering from
perpetual special disqualification files a certificate of candidacy stating under
oath that "he is eligible to run for (public) office," as expressly required under
Section 74, then he clearly makes a false material representation that is a
ground for a petition under Section 78. As this Court explained in Fermin:
Lest it be misunderstood, the denial of due course to or the cancellation of
the CoC is not based on the lack of qualifications but on a finding that the
candidate made a material representation that is false, which may relate to
the qualifications required of the public office he/she is running for. It is noted
that the candidate states in his/her CoC that he/she is eligible for the office
he/she seeks. Section 78 of the OEC, therefore, is to be read in relation to
the constitutional and statutory provisions on qualifications or eligibility for
public office. If the candidate subsequently states a material representation in
the CoC that is false, the COMELEC, following the law, is empowered to
deny due course to or cancel such certificate. Indeed, the Court has already
likened a proceeding under Section 78 to a quo warranto proceeding under
Section 253 of the OEC since they both deal with the eligibility or qualification
of a candidate, with the distinction mainly in the fact that a "Section 78"
petition is filed before proclamation, while a petition for quo warranto is filed
after proclamation of the winning candidate.18 (Emphasis supplied)
Conviction for robbery by final judgment with the penalty of prisin mayor, to
which perpetual special disqualification attaches by operation of law, is not a
ground for a petition under Section 68 because robbery is not one of the
offenses enumerated in Section 68. Insofar as crimes are concerned, Section
68 refers only to election offenses under the Omnibus Election Code and not
to crimes under the Revised Penal Code. For ready reference, we quote
again Section 68 of the Omnibus Election Code:
Sec. 68. Disqualifications. Any candidate who, in an action or protest in
which he is a party is declared by final decision by a competent court guilty
of, or found by the Commission of having (a) given money or other material
consideration to influence, induce or corrupt the voters or public officials
performing electoral functions;
(b) committed acts of terrorism to enhance his candidacy; (c) spent in his
election campaign an amount in excess of that allowed by this Code; (d)
solicited, received or made any contribution prohibited under Sections 89, 95,
96, 97 and 104; or (e) violated any of Sections 80, 83, 85, 86 and 261,
paragraphs d, e, k, v, and cc, sub-paragraph 6, shall be disqualified from
continuing as a candidate, or if he has been elected, from holding the office.
Any person who is a permanent resident of or an immigrant to a foreign
country shall not be qualified to run for any elective office under this Code,
unless said person has waived his status as permanent resident or immigrant
of a foreign country in accordance with the residence requirement provided
for in the election laws. (Emphasis supplied)
There is absolutely nothing in the language of Section 68 that will justify
including the crime of robbery as one of the offenses enumerated in this
Section. All the offenses enumerated in Section 68 refer to offenses under
the Omnibus Election Code. The dissenting opinion of Justice Reyes gravely
errs when it holds that Jalosjos conviction for the crime of robbery under the
Revised Penal Code is a ground for "a petition for disqualification under
Section 68 of the OEC and not for cancellation of COC under Section 78
thereof." This Court has already ruled that offenses punished in laws other
than in the Omnibus Election Code cannot be a ground for a petition under
Section 68. In Codilla, Sr. v. de Venecia,19 the Court declared:
The jurisdiction of the COMELEC to disqualify candidates is limited to those
enumerated in Section 68 of the Omnibus Election Code. All other election
offenses are beyond the ambit of COMELEC jurisdiction.They are criminal
and not administrative in nature. (Emphasis supplied)
A candidate for mayor during the 2010 local elections certifies under oath
four statements: (1) a statement that the candidate is a natural born or
naturalized Filipino citizen; (2) a statement that the candidate is not a
permanent resident of, or immigrant to, a foreign country; (3) a statement that
the candidate is eligible for the office he seeks election; and (4) a statement
of the candidates allegiance to the Constitution of the Republic of the
Philippines.20
We now ask: Did Jalosjos make a false statement of a material fact in his
certificate of candidacy when he stated under oath that he was eligible to run
for mayor? The COMELEC and the dissenting opinions all found that
Jalosjos was not eligible to run for public office. The COMELEC concluded
that Jalosjos made a false material representation that is a ground for a
petition under Section 78. The dissenting opinion of Justice Reyes, however,
concluded that the ineligibility of Jalosjos is a disqualification which is a
ground for a petition under Section 68 and not under Section 78. The
dissenting opinion of Justice Brion concluded that the ineligibility of Jalosjos
is a disqualification that is not a ground under Section 78 without, however,
saying under what specific provision of law a petition against Jalosjos can be
filed to cancel his certificate of candidacy.
What is indisputably clear is that the false material representation of Jalosjos
is a ground for a petition under Section 78. However, since the false material
representation arises from a crime penalized by prisin mayor, a petition
under Section 12 of the Omnibus Election Code or Section 40 of the Local
Government Code can also be properly filed. The petitioner has a choice
whether to anchor his petition on Section 12 or Section 78 of the Omnibus
Election Code, or on Section 40 of the Local Government Code. The law
expressly provides multiple remedies and the choice of which remedy to
adopt belongs to the petitioner.
The COMELEC properly cancelled Jalosjos certificate of candidacy. A void
certificate of candidacy on the ground of ineligibility that existed at the time of
the filing of the certificate of candidacy can never give rise to a valid
candidacy, and much less to valid votes.21 Jalosjos certificate of candidacy
was cancelled because he was ineligible from the start to run for Mayor.
Whether his certificate of candidacy is cancelled before or after the elections
is immaterial because the cancellation on such ground means he was never
a valid candidate from the very beginning, his certificate of candidacy being
void ab initio. Jalosjos ineligibility existed on the day he filed his certificate of
candidacy, and the cancellation of his certificate of candidacy retroacted to
the day he filed it. Thus, Cardino ran unopposed. There was only one
qualified candidate for Mayor in the May 2010 elections Cardino who
received the highest number of votes.
Decisions of this Court holding that the second-placer cannot be proclaimed
winner if the first-placer is disqualified or declared ineligible22 should be
limited to situations where the certificate of candidacy of the first-placer was
valid at the time of filing but subsequently had to be cancelled because of a
violation of law that took place, or a legal impediment that took effect, after
the filing of the certificate of candidacy. If the certificate of candidacy is void
ab initio, then legally the person who filed such void certificate of candidacy
was never a candidate in the elections at any time. All votes for such non-
candidate are stray votes and should not be counted. Thus, such non-
candidate can never be a first-placer in the elections. If a certificate of
candidacy void ab initio is cancelled on the day, or before the day, of the
election, prevailing jurisprudence holds that all votes for that candidate are
stray votes.23 If a certificate of candidacy void ab initio is cancelled one day
or more after the elections, all votes for such candidate should also be stray
votes because the certificate of candidacy is void from the very beginning.
This is the more equitable and logical approach on the effect of the
cancellation of a certificate of candidacy that is void ab initio. Otherwise, a
certificate of candidacy void ab initio can operate to defeat one or more valid
certificates of candidacy for the same position.
Even without a petition under either Section 12 or Section 78 of the Omnibus
Election Code, or under Section 40 of the Local Government Code, the
COMELEC is under a legal duty to cancel the certificate of candidacy of
anyone suffering from the accessory penalty of perpetual special
disqualification to run for public office by virtue of a final judgment of
conviction. The final judgment of conviction is notice to the COMELEC of the
disqualification of the convict from running for public office. The law itself
bars the convict from running for public office, and the disqualification is part
of the final judgment of conviction. The final judgment of the court is
addressed not only to the Executive branch, but also to other government
agencies tasked to implement the final judgment under the law.
Whether or not the COMELEC is expressly mentioned in the judgment to
implement the disqualification, it is assumed that the portion of the final
judgment on disqualification to run for elective public office is addressed to
the COMELEC because under the Constitution the COMELEC is duty bound
to "enforce and administer all laws and regulations relative to the conduct of
an election."24 The disqualification of a convict to run for public office under
the Revised Penal Code, as affirmed by final judgment of a competent court,
is part of the enforcement and administration of "all laws" relating to the
conduct of elections.
To allow the COMELEC to wait for a person to file a petition to cancel the
certificate of candidacy of one suffering from perpetual special
disqualification will result in the anomaly that these cases so grotesquely
exemplify. Despite a prior perpetual special disqualification, Jalosjos was
elected and served twice as mayor. The COMELEC will be grossly remiss in
its constitutional duty to "enforce and administer all laws" relating to the
conduct of elections if it does not motu proprio bar from running for public
office those suffering from perpetual special disqualification by virtue of a
final judgment.
WHEREFORE, the Motion for Reconsideration in G.R. No. 193237 is
DENIED, and the Petition in G.R. No. 193536 is GRANTED. The Resolutions
dated 10 May 2010 and 11 August 2010 of the COMELEC First Division and
the COMELEC En Bane, respectively, in SPA No. 09-076 (DC), are
AFFIRMED with the MODIFICATION that Agapito J. Cardino ran unopposed
in the May 2010 elections and thus received the highest number of votes for
Mayor. The COMELEC En Bane is DIRECTED to constitute a Special City
Board of Canvassers to proclaim Agapito J. Cardino as the duly elected
Mayor of Dapitan City, Zamboanga del Norte.
Let copies of this Decision be furnished the Secretaries of the Department of
Justice and the Department of Interior and Local Government so they can
cause the arrest of, and enforce the jail sentence on, Dominador G. Jalosjos,
Jr. due to his conviction for the crime of robbery in a final judgment issued by
the Regional Trial Court (Branch 18) of Cebu City in Criminal Case No. CCC-
XIV-140-CEBU. SO ORDERED.
G.R. No. 193314 June 25, 2013
SVETLANA P. JALOSJOS, Petitioner,
vs.
COMMISSION ON ELECTIONS, EDWIN ELIM TUPAG and RODOLFO Y.
ESTRELLADA. Respondents.
RESOLUTION
SERENO, CJ.:
This Resolution resolves the Motion for Partial Reconsideration dated 8
March 2013, filed by Edwin Elim Tumpag and Rodolfo Y. Estrellada (private
respondents) and the Motion for Reconsideration dated 27 March 2013, filed
by Svetlana P. Jalosjos (petitioner) in connection with the Decision of the
Court promulgated on 26 February 2013.
Private respondents come before this Court on the sole issue of who
between the vice-mayor and the second placer shall assume office pursuant
to the final determination of petitioner's ineligibility to run for office and the
lifting of the 07 September 20 1 0 Status Quo Order.
Petitioner, on the other hand, questions the Decision, by raising the following
arguments:
1. This Court erred in concluding that there are inconsistencies in the
Joint Affidavit of the witnesses presented by petitioner.
2. Petitioners stay in Brgy. Punta Miray should be considered in
determining the one-year residency requirement in the same
municipality.
3. Petitioners registration as a voter presupposes she has stayed in
the municipality at least six months prior to the registration.
4. Petitioners certificate of candidacy (COC) should not be
cancelled, absent any finding of a deliberate attempt to deceive the
electorate.
5. COMELEC was ousted of its jurisdiction to decide on the question
of the qualification of petitioner after she was proclaimed as winner.
We deny the motion of petitioner and grant the partial motion for
reconsideration of private respondents.
The claim of actual and physical residence in Brgy. Tugas since 2008 is
contradicted by the statements that petitioner was staying in Mrs. Lourdes
Yaps house while her residential unit was being constructed; and that by
December 2009, the construction was still ongoing.
Petitioner questions the inconsistencies noted by the court in the affidavit of
her witnesses who, while claiming that they personally know her to have
been an actual and physical resident of Brgy. Tugas since 2008, declared in
the same affidavit that while her house was being constructed, she used to
stay at the residence of Mrs. Lourdes Yap (Mrs. Yap) in Brgy. Punta Miray.
The declaration of petitioners witnesses that they know petitioner to be "an
actual and physical resident of Brgy. Tugas since 2008" contradicts their
statements that (1) they have "started the construction of the residential
house of the owner and other infrastructures of the resort since January
2009"; (2) "until the present (meaning until December 2009 when they
executed their affidavit), the construction and development projects are still
on-going"; and (3) "at times when Ms. Jalosjos is in Baliangao, she used to
stay in the house of Mrs. Lourdes Yap at Sitio Balas Diut, Brgy. Punta Miray,
Baliangao, Misamis Occidental, while her residential house was still being
constructed."
Petitioner asserts that there are no inconsistencies in the statements of her
witnesses, and that the statements are in fact consistent with her claim that
she had been residing in Baliangao, Misamis Occidental for at least one year
prior to the 10 May 2010 elections. She argues as follows:
x x x the fact that some of these witnesses knew that petitioner lived in the
house of Mrs. Lourdes Yap in a different barangay, particularly Brgy. Punta
Miray, is not at all inconsistent or contradictory with petitioners assertion and
the witnesses statements that petitioner resides in Brgy. Tugas, because
petitioner obviously needed a place to stay while her residence in Brgy.
Tugas was being constructed. This does not negate the fact that petitioner
was establishing her residence in Brgy. Tugas since the latter part of 2008,
or at the very latest during the first few months (sic) of January 2009. 1
Her assertion that she "was establishing her residence in Brgy. Tugas since
the latter part of 2008, or at the very latest during the first few months [sic] of
January 2009" shows that she herself cannot pinpoint the particular date
when she established her legal residence in Brgy. Tugas. This fact is
contradictory to the declaration of the witnesses that "we have personal
knowledge that Ms. Svetlana P. Jalosjos has been an actual and physical
resident of Sunrise Tugas, Baliangao, Misamis Occidental, after she bought
the properties thereat from the Heirs of Agapita Yap, Jr. on 9 December
2008."
To be an actual and physical resident of a locality, one must have a dwelling
place where one resides no matter how modest and regardless of ownership.
The mere purchase of a parcel of land does not make it ones residence. The
fact that the residential structure where petitioner intends to reside was still
under construction on the lot she purchased means that she has not yet
established actual and physical residence in the barangay, contrary to the
declaration of her witnesses that she has been an actual and physical
resident of Brgy. Tugas since 2008.
Petitioner wants this Court to believe that the ongoing construction referred
to by her witnesses in their joint affidavit does not refer to the residential
structure, but to the other structures in the resort that petitioner was then
establishing. She does not assert, however, that her residential unit had
already been completed by that time. In fact, she has failed to present any
proof as to when her claimed residential unit was completed, or when she
transferred to the unit.
It must be pointed out that the second statement in paragraph 1 of the Joint
Affidavit states: "We have started the construction of the residential house of
the owner and the other infrastructures of the resort since January, 2009."
This was immediately followed by paragraph 2 which reads:
2. Until the present, the construction and development projects are still
ongoing. To establish the fact of the on-going construction work, we are
attaching herewith as part hereof, pictures we have taken on December 20
and 29, 2009 marked Annexes "1", "2", "3", "4", "5", and "6" hereof,
respectively.2
Without any qualification as to what is being referred to by the construction
and development projects in paragraph 2, it follows that it refers to the
"construction of the residential house of the owner and the other
infrastructures of the resort" found in the prior statement.
In the affidavit, there is no mention whatsoever of completion of the
residential house as of 30 December 2009. Neither has any occupancy
permit been presented by petitioner to definitely establish the date she
started occupying what she claims to be her residential unit in the resort.
Petitioner takes pains to present photographs of other structures in the
resort, but fails to present any photograph of a completed residential
structure, which is more relevant in proving her claimed residence in Brgy.
Tugas. If the residential unit was already completed by December 2009, her
witnesses could have easily testified to that fact and presented photographs
of the structure.
This absence of any photograph proving the alleged residence of petitioner in
the resort bolsters the courts conclusion that at the time the witnesses
signed their affidavits in December 2009, or six months prior to the May 2010
elections, her residential unit had not yet been built.
A temporary stay in a strangers house cannot amount to residence.
Petitioner wants this Court to credit her stay in Mrs. Yaps house as proof
that she had been a resident of the Municipality of Baliangao for more than
one year prior to the 10 May 2010 elections. In her words:
7. More importantly, if this Honorable Court would consider the circumstance
that petitioner was staying in Brgy. Punta Miray as true so as to render the
statements of her witnesses inconsistent, then such a consideration should
not have led this Honorable Court to the conclusion that petitioner was not a
resident of Baliangao, Misamis Occidental since Brgy. Punta Miray is located
in the municipality of Baliangao like Brgy. Tugas. In other words, the fact that
petitioner was staying in a house in Brgy. Punta Miray while her residence in
Brgy. Tugas was being constructed during the early part of 2009 would
STILL LEAD to the conclusion that petitioner has been residing in Baliangao,
Misamis Occidental for at least one (1) year prior to the 10 May 2010
elections since Brgy. Punta Miray is a part of Baliangao.3 (Emphasis in the
original and underscoring omitted)
Petitioner relies on Mitra v. COMELEC4 and Sabili v. COMELEC5 in claiming
that "the series of events whereby petitioner first had her residence
constructed ... after she purchased in 2008 the property where her residence
was eventually established, and while she lived in another barangay of the
same municipality, and then eventually moved in to her residence in Brgy.
Tugas amounted to an incremental process of transferring residence."
Petitioners case must be differentiated from Mitra in that petitioner therein
presented not only the notarized lease contract over the property where he
claimed to be residing, but also "a residence certificate ... and an
identification card of the House of Representatives showing Aborlan as his
residence."6
In Sabili, the Court declared that "the existence of a house and lot apparently
owned by petitioners common-law wife, with whom he has been living for
over two decades, makes plausible petitioners allegation of bodily presence
and intent to reside in the area."7
Petitioners stay in the house of Mrs. Yap in Brgy. Punta Miray, on the other
hand, was only a temporary and intermittent stay that does not amount to
residence. It was never the intention of petitioner to reside in that barangay,
as she only stayed there at times when she was in Baliangao while her
house was being constructed.8 Her temporary stay in Brgy. Punta Miray
cannot be counted as residence in Baliangao.
Petitioner failed to show by what right she stayed in Mrs. Yaps house.
Except for the declarations of her witnesses that she stayed there while her
residential unit in the resort was being built, she presented no other evidence
to show any basis of her right to stay in that particular house as a resident.
Approval of voter registration does not presuppose six-month residency in
the place prior to registration.
It appears on record that petitioner, in filing her application for registration as
a voter on 7 May 2009, claimed "that she has been a resident of Brgy.
Tugas, Baliangao, Misamis Occidental for six (6) months prior to the filing of
the said registration."9 For her claim to be true, she must have resided in
Brgy. Tugas on or before 8 November 2008. The records, however, show
that she purchased property in Brgy. Tugas only on December 2008. Thus,
her claim that she had been a resident of Brgy. Tugas for at least six (6)
months prior to her application for registration as a voter on 7 May 2009 is an
utter falsity.
The approval of the registration of petitioner as a voter does not and cannot
carry with it an affirmation of the falsehood and misrepresentation as to the
period of her residence in Brgy. Tugas. At best, the approval of her
registration as a voter carries a presumption that the registrant will be able to
meet the six-month residency requirement for the elections in which the
registrant intends to vote.10 It does not prove that the registrant has resided
in the locality for more than one year prior to the elections.
Representation that one is qualified to run for public office when proven false
constitutes a deliberate attempt to deceive the electorate.
Petitioner contends that the Court erred in upholding the cancellation of her
COC despite the glaring absence of any finding made by the respondent
COMELEC in its assailed Resolution that petitioner committed a false
material representation in said COC.
The finding of the COMELEC that petitioner lacks the one year residency
requirement to run for local elective position in the municipality of Baliangao
directly contradicts her sworn declaration that she is eligible to run for public
office. The fact that petitioner failed to prove that she has been a resident of
the locality for at least one year prior to the elections reveals the falsity of her
assertion in her COC that she is qualified to run for a local elective position.
This false material representation justifies the cancellation of her COC.
When the candidates claim of eligibility is proven false, as when the
candidate failed to substantiate meeting the required residency in the locality,
the representation of eligibility in the COC constitutes a "deliberate attempt to
mislead, misinform, or hide the fact"11 of ineligibility.
COMELEC is not ousted of jurisdiction to decide a petition for cancellation of
the certificate of candidacy after the winner is proclaimed.
The COMELEC, in its Resolution dated 19 August 2010, citing Aquino v.
COMELEC,12 has amply discussed this matter, thus:
Petitioners contention that "after the conduct of the election and (petitioner)
has been established the winner of the electoral exercise from the moment of
election, the COMELEC is automatically divested of authority to pass upon
the question of qualification" finds no basis in law, because even after the
elections the COMELEC is empowered by Section 6 (in relation to Section 7)
of R.A. 6646 to continue to hear and decide questions relating to
qualifications of candidates. Section 6 states:
SECTION 6. Effect of Disqualification Case. Any candidate who has been
declared by final judgment to be disqualified shall not be voted for, and the
votes cast for him shall not be counted. If for any reason a candidate is not
declared by final judgment before an election to be disqualified and he is
voted for and receives the winning number of votes in such election, the
Court or Commission shall continue with the trial and hearing of the action,
inquiry or protest and, upon motion of the complainant or any intervenor, may
during the pendency thereof order the suspension of the proclamation of
such candidate whenever the evidence of guilt is strong.
Under the above-quoted provision, not only is a disqualification case against
a candidate allowed to continue after the election (and does not oust the
COMELEC of its jurisdiction), but his obtaining the highest number of votes
will not result in the suspension or termination of the proceedings against him
when the evidence of guilt is strong. While the phrase "when the evidence of
guilt is strong" seems to suggest that the provisions of Section 6 ought to be
applicable only to disqualification cases under Section 68 of the Omnibus
Election Code, Section 7 of R.A. 6646 allows the application of the provisions
of Section 6 to cases involving disqualification based on ineligibility under
Section 78 of B.P. 881. Section 7 states:
SECTION 7. Petition to Deny Due Course or to Cancel a Certificate of
Candidacy.1wphi1 The procedure hereinabove provided shall apply to
petition to deny due course to or cancel a certificate of candidacy based on
Sec. 78 of Batas Pambansa 881.13
The cancellation of the certificate of candidacy of an ineligible candidate who the Municipality of Baliangao, Misamis Occidental in the 10 May 2010
has assumed office renders the officer a de facto officer. elections. This resolution is immediately executory.

This Court has ruled in Aratea v. COMELEC14 and Jalosjos, Jr. v. SO ORDERED.
COMELEC15 that the cancellation of the COC based on an ineligibility that
existed at the time of its filing means that the candidate was never a valid
candidate from the very beginning.16

On the question of who should assume the post vacated by the ineligible
candidate, this Court amply explained in Jalosjos, Jr. that:

Decisions of this Court holding that the second-placer cannot be proclaimed

winner if the first-placer is disqualified or declared ineligible should be limited
to situations where the certificate of candidacy of the first placer was valid at
the time of filing but subsequently had to be cancelled because of a violation
of law that took place, or a legal impediment that took effect, after the filing of
the certificate of candidacy. If the certificate of candidacy is void ab initio,
then legally the person who filed such void certificate of candidacy was never
a candidate in the elections at any time. All votes for such non-candidate are
stray votes and should not be counted. Thus, such non-candidate can never
be a first-placer in the elections. If a certificate of candidacy void ab initio is
cancelled on the day, or before the day, of the election, prevailing
jurisprudence holds that all votes for that candidate are stray votes. If a
certificate of candidacy void ab initio is cancelled one day or more after the
elections, all votes for such candidate should also be stray votes because the
certificate of candidacy is void from the very beginning.17 x x x. (Citations
omitted)

There is another more compelling reason why the eligible candidate who
garnered the highest number of votes must assume the office. The ineligible
candidate who was proclaimed and who already assumed office is a de facto
officer by virtue of the ineligibility.

The rule on succession in Section 44 of the Local Government Code18

cannot apply in instances when a de facto officer is ousted from office and
the de jure officer takes over. The ouster of a de facto officer cannot create a
permanent vacancy as contemplated in the Local Government Code. There
is no vacancy to speak of as the de jure officer, the rightful winner in the
elections, has the legal right to assume the position.

WHEREFORE, in view of the foregoing, the Motion for Partial

Reconsideration dated 08 March 2013 is hereby GRANTED. Petitioner's
Motion for Reconsideration dated 27 March 2013 is hereby DENIED with
FINALITY. AGNE V. YAP, SR. is hereby declared the duly elected Mayor of
G.R. No. 146486. March 4, 2005
OFFICE OF THE OMBUDSMAN, Petitioners,
vs.
HONORABLE COURT OF APPEALS AND FORMER DEPUTY
OMBUDSMAN FOR THE VISAYAS ARTURO C. MOJICA, respondents.
DECISION
CHICO-NAZARIO, J.:
This is a "petition for review on certiorari under Rule 45 of the 1997 Rules of
Civil Procedure, and alternatively, an original special civil action for certiorari
under Sec. 1, Rule 65" of the Decision1 of the Court of Appeals of 18
December 2000 in CA-G.R. SP No. 58460 entitled, Arturo C. Mojica, Deputy
Ombudsman for the Visayas v. Ombudsman Aniano Desierto, Over-all
Deputy Ombudsman Margarito Gervacio, Jr. and the Committee of Peers
composed of Deputy Ombudsman Jesus F. Guerrero, Deputy Ombudsman
Rolando Casimiro and Special Prosecutor Leonardo P. Tamayo.
The case had its inception on 29 December 1999, when twenty-two officials
and employees of the Office of the Deputy Ombudsman (OMB) for the
Visayas, led by its two directors, filed a formal complaint2 with the Office of
the Ombudsman requesting an investigation on the basis of allegations that
then Deputy Ombudsman for the Visayas, herein private respondent Arturo
Mojica, committed the following:
1. Sexual harassment against Rayvi Padua-Varona;
2. Mulcting money from confidential employees James Alueta and Eden
Kiamco; and
3. Oppression against all employees in not releasing the 7,200.00 benefits
of OMB-Visayas employees on the date the said amount was due for
release.
The complainants further requested that an officer-in-charge from the OMB-
Manila be appointed to manage their office to prevent the Deputy
Ombudsman from harassing witnesses and wielding his influence over them.
To underscore the seriousness of their intentions, they threatened to go on a
mass leave of absence, and in fact took their cause to the media.3
The subsequent events, as stated by the Ombudsman and adopted by the
Court of Appeals,4 are as follows:
The Ombudsman immediately proceeded to the OMB-Visayas office in Cebu
City to personally deal with the office rebellion. Reaching Cebu, the
Ombudsman was informed by Petitioner that Petitioner wanted to proceed to
Manila, apparently because of his alienation and the fear for reprisal from his
alleged lady victims husbands. Petitioner in fact already had a ticket for the
plane leaving two hours later that day. The Ombudsman assented to the
quick movement to Manila for Petitioners safety and the interest of the
Offices operations. Subsequently, the Ombudsman installed Assistant
Ombudsman Nicanor J. Cruz as the Officer-in-Charge of OMB-Visayas.
Acting on the formal complaint against petitioner, the Ombudsman directed
his Fact-Finding and Intelligence Bureau (FFIB) to conduct a verification and
fact-finding investigation on the matter. The FFIB, later in its Report, found
the evidence against Petitioner strong on the charges of acts of extortion,
sexual harassment and oppression. The FFIB report was referred by the
Ombudsman to a constituted Committee of Peers composed of the Deputy
Ombudsman for Luzon, The Special Prosecutor and the Deputy Ombudsman
for the Military.
The Committee of Peers initially recommended that the investigation be
converted into one solely for purposes of impeachment. However, this
recommendation was denied by the Ombudsman after careful study, and
following the established stand of the Office of the Ombudsman that the
Deputy Ombudsmen and The Special Prosecutor are not removable through
impeachment. As succintly (sic) stated by the Ombudsman in his
Memorandum dated March 27, 2000 (in reiteration of the March 13, 2000
Order of Overall Deputy Ombudsman) -
Acting on your query as to whether or not the Ombudsman confirms or
affirms the disapproval by Overall Deputy Ombudsman Margarito P.
Gervacio, Jr., of your recommendation to conduct instead an investigation of
the complaint against Deputy Ombudsman Arturo C. Mojica solely for the
purpose of impeachment, I hereby confirm the action of disapproval.
xxx
Moreover, as demonstrated in many previous cases against Deputy
Ombudsman Arturo C. Mojica, Deputy Ombudsman Manuel B. Casaclang,
Deputy Ombudsman Jesus F. Guerrero, Special Prosecutor Leonardo P.
Tamayo and former Overall Deputy Ombudsman Francisco A. Villa, the
official position of the Office is that the Constitution, R.A. 6770 and the
Supreme Court in Zaldivar vs. Gonzales, G.R. No. 80578, 19 May 1988,
exclude the Deputy Ombudsman and the Special Prosecutor from the list of
impeachable officials and the Jarque case involves Ombudsman Aniano A.
Desierto as respondent, hence, the mention therein of the Deputy
Ombudsmen is merely an obiter dictum. Two of your present members in fact
participated in the investigation of the previous Mojica cases and thereafter
recommended the dismissal thereof for lack of merit.
In the same Memorandum, the Ombudsman directed the Committee of
Peers to evaluate the merits of the case and if warranted by evidence, to
conduct administrative and criminal investigation(s) immediately thereafter.
Upon evaluation, the Committee recommended the docketing of the
complaint as criminal and administrative cases. The Committee of Peers
Evaluation dated 30 March 2000, stated as follows:
On the basis of the foregoing facts, duly supported with sworn-statements
executed by all concerned parties, the undersigned members of the COP find
sufficient cause to warrant the conduct of preliminary investigation and
administrative adjudication against Deputy Ombudsman Arturo C. Mojica for
the following criminal and administrative offenses, namely:
I. CRIMINAL
Violation of Section 3, paragraph[s] (b) and (e) of R.A. 3019 (Anti-Graft and
Corrupt Practices Act);
Violation of R.A. 7877 (Anti-Sexual Harassment Act of 1995),
II. ADMINISTRATIVE
a. Dishonesty
b. Grave Misconduct
c. Oppression
d. Conduct grossly prejudicial to the best interest of the service
e. Directly or indirectly having financial and material interest in any
transaction requiring the approval of his Office; (Section 22, paragraphs (A),
(C), (N), (T) and (U), Rule XIV of Executive Order No. 292, otherwise known
as the "Administrative Code of 1987".)
Accordingly, let the instant case be docketed separately, one for the criminal
case and another for the administrative case covering all the offenses
specified above and, thereafter, a formal investigation be simultaneously and
jointly conducted by the Committee of Peers, pursuant to Administrative
Order No. 7.
Accordingly, on 6 April 2000, the Committee of Peers (COP) directed the
herein private respondent Mojica in OMB-0-00-0615 entitled, Padua-Varona
v. Mojica, for violation of Republic Act No. 7877 (Anti-Sexual Harassment Act
of 1995) and Sec. 3, par. (b) and (c) of Rep. Act No. 3019 (Anti-Graft and
Corrupt Practices Act) to submit his controverting evidence.
On 10 April 2000, the complainants in OMB-0-00-0615 filed a Motion to
Place Respondent Under Preventive Suspension,5 claiming that the offenses
for which private respondent Mojica was charged warranted removal from
office, the evidence against him was strong, and that Mojicas continued stay
in office would prejudice the case, as he was harassing some witnesses and
complainants to recant or otherwise desist from pursuing the case.
On the same date, the Ombudsman issued a Memorandum 6 to the COP,
directing them to conduct administrative proceedings in OMB-ADM-0-00-
0316 entitled, OMB Visayas Employees v. Mojica (for dishonesty, grave
misconduct, oppression, conduct grossly prejudicial to the best interest of the
service, and directly or indirectly having financial and material interest in any
transaction requiring the approval of his office), and submit a
recommendation on the propriety of putting Mojica under preventive
suspension.
Subsequently, the COP issued an Order7 in OMB-ADM-0-00-0316 finding
prima facie evidence against Mojica and requiring him to submit an answer to
the above-mentioned offenses within ten days, as well as his counter-
affidavit and supporting evidence.8
Aggrieved, the private respondent filed a petition9 for Certiorari before the
Court of Appeals praying that a resolution be issued:
1. . . . issuing a Temporary Restraining Order (TRO) upon the filing of the
petition to enjoin and restrain the respondents, (the Ombudsman, the Over-
all Deputy Ombudsman, the Committee of Peers, and the Special
Prosecutor) their agents and representatives, from suspending the petitioner
(herein private respondent Mojica);
2. thereafter, converting said TRO into a Writ of Preliminary Injunction;
3. after hearing, a decision be rendered declaring the following acts of the
Ombudsman null and void ab initio:
a. detailing and assigning indefinitely the petitioner to OMB-Manila "in a
[special] capacity," thus effectively demoting/suspending petitioner, and
preventing him from preparing his defense;
b. authorizing or directing the docketing of the complaints against the
petitioner, which is equivalent to authorizing the filing of the administrative
and/or criminal cases against the petitioner, who is an impeachable official;
c. denying the request of petitioner for leave of absence, which acts were
done without lawful authority, in a malevolent and oppressive manner and
without jurisdiction.
On 04 May 2000, the Court of Appeals resolved to grant the prayer for
Temporary Restraining Order and required the Ombudsman to comment and
show cause why no writ of preliminary injunction should be issued, which
reads in part:
Meanwhile, to maintain the status quo and in order to forestall the petition at
bench from becoming moot and academic, and considering that upon
examination of the records we believe that there is an urgent need for the
issuance of a temporary restraining order to prevent great and irreparable
injury that would result to herein petitioner before the matter could be heard
on notice, the herein respondents, their agents and representatives acting for
and in their behalf or under their authority, are hereby enjoined and
restrained from proceeding with the hearing of the Motion to Place
Respondent Under Preventive Suspension dated April 10, 2000, which
hearing is set on May 9, 2000 at 2:00 oclock in the afternoon and/or from
conducting any further proceedings relative to the suspension from (o)ffice of
the herein petitioner until further order and/or notice from this Court.10
Nevertheless, on 6 June 2000, the COP issued an Order11 in both OMB-0-
00-0615 and OMB-ADM-0-00-0316 to the effect that having failed to submit
the required counter-affidavits despite the lapse of seventeen days from the
expiration of the extended reglementary period for filing the same,
respondent Mojica was deemed to have waived his right to present his
evidence. The COP thus deemed both criminal and administrative cases
submitted for resolution on the basis of the evidence on record.
Thus, on 13 June 2000, the private respondent thus filed an urgent motion12
before the Court of Appeals to enjoin the Ombudsman from taking any action
whatsoever in the criminal and administrative cases aforementioned. The
following day, the private respondent filed another urgent motion, this time
praying that the Court of Appeals issue an order requiring the Ombudsman to
show cause why it should not be cited for contempt for failing to conform with
the 4 May 2000 Resolution of the Court of Appeals. On 20 June 2000, the
Court of Appeals directed13 the Ombudsman to comment on the above
pleadings, and to comply with the formers Temporary Restraining Order of 4
May 2000.
The parties subsequently exchanged various pleadings that culminated in a
Resolution14 by the Court of Appeals on 5 July 2000 that, among other
things, directed the issuance of a writ of preliminary injunction enjoining all
therein respondents from taking any action whatsoever in cases No. OMB-0-
00-0615 (criminal) and No. OMB-ADM-0-00-0316 (administrative) against
Mojica, and deemed the instant petition submitted for resolution on the merits
upon the submission of the comment or explanation on the appellate courts
show cause Resolution of 20 June 2000.
Meanwhile, on 19 June 2000, the Office of the Deputy Ombudsman for the
Military directed the private respondent Mojica ostensibly to answer a
different set of charges for "violation of Art. 266 and Sec. 3(e) of Rep. Act No.
3019" (OMB-00-0-1050) and for "grave misconduct, gross neglect of duty,
and conduct prejudicial to the best interest of the service"15 (OMB-ADM-0-00-
0506). Feeling that this was merely an attempt at circumventing the
directives of the Court of Appeals, Mojica filed an urgent motion before the
Court of Appeals for respondents to show cause again why they should not
be cited for contempt.
By way of opposition, the Ombudsman pointed out that the writ of preliminary
injunction issued by the appellate court was against any action taken in
cases No. OMB-0-00-0615 and No. OMB-ADM-0-00-0316, and not against
any new cases filed against the private respondent thereafter. The
Ombudsman further pointed out that since Mojicas term of office had already
expired as of 6 July 2000, the private respondent could no longer invoke his
alleged immunity from suit.
On 14 August 2000, the Office of the Deputy Ombudsman for the Military
issued an order deeming that cases No. OMB-0-00-1050 and No. OMB-
ADM-0-00-0506 had been deemed submitted for resolution on the basis of
the evidence at hand. On 17 August 2000, the private respondent filed an
urgent motion for the immediate issuance of an order enjoining the
Ombudsman from taking any further action whatsoever in OMB-ADM-0-00-
0506 and OMB-0-00-1050.16
On 18 December 2000, despite the expiration of private respondent Mojicas
term of office, the Court of Appeals nevertheless rendered the assailed
Decision17 on the grounds of public interest.
In essence, the appellate court held that although the 1987 Constitution, the
deliberations thereon, and the commentaries of noted jurists, all indicate that
a Deputy Ombudsman is not an impeachable official, it was nevertheless
constrained to hold otherwise on the basis of this Courts past rulings. Thus,
the dispositive portion thereof reads:
WHEREFORE, in view of the foregoing, the order of the Committee of Peers
in its Evaluation dated March 30, 2000 directing the docketing separately of
the criminal case as well as the administrative case against the petitioner is
hereby SET ASIDE and DECLARED NULL AND VOID. Accordingly, the
complaints in Criminal Case No. OMB-0-00-0615 and Administrative Case
No. OMB-ADM-0-00-0316, respectively, filed against the petitioner are
hereby DISMISSED. All acts or orders of the Ombudsman, the Overall
Deputy Ombudsman and the Committee of Peers, subjecting the petitioner
[herein private respondent] to criminal and administrative investigations, or
pursuant to such investigations, are likewise hereby DECLARED INVALID.18
Thereupon, on 15 January 2001, the Office of the Ombudsman filed before
this Court "a petition for review on certiorari under Rule 45 of the 1997 Rules
of Civil Procedure, and alternatively, an original special civil action for
certiorari under Sec. 1, Rule 65 of the same rules," of the above decision, on
the following grounds:
I
THE HONORABLE COURT OF APPEALS GRAVELY ABUSED ITS
DISCRETION IN ERRONEOUSLY RULING THAT PRIVATE
RESPONDENT, AS THEN DEPUTY OMBUDSMAN FOR THE VISAYAS, IS
AN IMPEACHABLE OFFICIAL, CONSIDERING THAT THE PLAIN TEXT OF
SEC. 2, ART. XI OF THE 1987 CONSTITUTION, AS WELL AS THE INTENT
OF THE FRAMERS THEREOF, EXCLUDES A DEPUTY OMBUDSMAN
FROM THE LIST OF IMPEACHABLE OFFICIALS.
II
THE PRINCIPLE OF STARE DECISIS ET NON QUIETA MOVERE MAY
NOT BE INVOKED TO PERPETUATE AN ERRONEOUS OBITER DICTUM.
III
THE HONORABLE COURT OF APPEALS HAS NO JURISDICTION TO
ORDER THE DISMISSAL OF A CRIMINAL CASE AGAINST A RETIRED
DEPUTY OMBUDSMAN, WHICH IS STILL PENDING PRELIMINARY
INVESTIGATION BEFORE PETITIONER OMBUDSMAN.19
At the outset, it bears noting that instead of assailing the Court of Appeals
Decision solely by petition for review on certiorari under Rule 45 of the 1997
Rules of Civil Procedure, petitioner lodged the present petition "alternatively"
as "an original special civil action for certiorari under Sec. 1, Rule 65 of the
same rules."
It is settled that the appeal from a final disposition of the Court of Appeals is
a petition for review under Rule 45 and not a special civil action under Rule
65 of the 1997 Rules of Civil Procedure. Rule 45 is clear that the decisions,
final orders or resolutions of the Court of Appeals in any case, i.e., regardless
of the nature of the action or proceeding involved, may be appealed to this
Court by filing a petition for review, which would be but a continuation of the
appellate process over the original case. Under Rule 45, the reglementary
period to appeal is fifteen (15) days from notice of judgment or denial of
motion for reconsideration.20
The records show that following the petitioners receipt on 5 January 2001 of
a copy the Court of Appeals Decision, it filed the present petition on 16
January 2001, well within the reglementary period so indicated.
We go now into the substantive aspect of this case, where we are presented
an attack upon a prior interpretation of Article XI, Sec. 2 in relation to Article
XI, Sec. 8 of our Constitution.
The interpretation in question first appears in Cuenco v. Fernan,21 a
disbarment case against then Associate Justice Marcelo Fernan filed by Atty.
Miguel Cuenco, a former member of the House of Representatives, where
we held in part:
There is another reason why the complaint for disbarment here must be
dismissed. Members of the Supreme Court must, under Article VIII (7)(1) of
the Constitution, be members of the Philippine Bar and may be removed
from office only by impeachment (Article XI [2], Constitution). To grant a
complaint for disbarment of a Member of the Court during the Members
incumbency, would in effect be to circumvent and hence to run afoul of the
constitutional mandate that Members of the Court may be removed from
office only by impeachment for and conviction of certain offenses listed in
Article XI (2) of the Constitution. Precisely the same situation exists in
respect of the Ombudsman and his deputies (Article XI [8] in relation to
Article XI [2], id.), a majority of the members of the Commission on Elections
(Article IX [C] [1] [1] in relation to Article XI [2], id.), and the members of the
Commission on Audit who are not certified public accountants (Article XI [D]
[1] [1], id.), all of whom are constitutionally required to be members of the
Philippine Bar. (Emphasis supplied.)
Barely two months later, we issued another Resolution in In Re: Raul M.
Gonzales,22 concerning the same charges for disbarment brought against
Justice Fernan, wherein we cited the above ruling to underscore the principle
involved in the case, that "[a] public officer who under the Constitution is
required to be a member of the Philippine Bar as a qualification for the office
held by him and who may be removed from office only by impeachment,
cannot be charged with disbarment during the incumbency of such public
officer."23
In 1995, we subsequently anchored our Resolution in Jarque v. Desierto,24 a
disbarment case against then Ombudsman Aniano Desierto, on the above
ruling, adding that:
. . . [T]he court is not here saying that the Ombudsman and other
constitutional officers who are required by the Constitution to be members of
the Philippine Bar and are remova[ble] only by impeachment, are immunized
from liability possibly for criminal acts or for violation of the Code of
Professional Responsibility or other claimed misbehavior. What the Court is
saying is that there is here a fundamental procedural requirement which must
be observed before such liability may be determined and enforced. The
Ombudsman or his deputies must first be removed from office via the
constitutional route of impeachment under Sections 2 and 3 of Article XI of
the 1987 Constitution. Should the tenure of the Ombudsman be thus
terminated by impeachment, he may then be held to answer either criminally
or administratively e.g., in disbarment proceedings for any wrong or
misbehavior which may be proven against him in appropriate proceedings.
(Emphasis supplied)
Finally, in Lastimosa-Dalawampu v. Deputy Ombudsman Mojica and Graft
Investigator Labella,25 the Court, citing its Resolution in Jarque v. Desierto,26
dismissed, in a minute resolution, the complaint for disbarment against the
herein private respondent Mojica in his capacity as Deputy Ombudsman for
the Visayas, stating that:
Anent the complaint for disbarment against respondent Arturo C. Mojica in
his capacity as Deputy Ombudsman for Visayas, suffice it to state that a
public officer whose membership in the Philippine Bar is a qualification for
the office held by him and removable only by impeachment cannot be
charged with disbarment during his membership (In Re: Raul M. Gonzales,
160 SCRA 771, 774 [1988]; Cuenco vs. Fernan, 158 SCRA 29, 40 [1988]).
And we have held in the case of Jarque vs. Desierto (A.C. No. 4509, En
Banc Resolution December 5, 1995), that the Ombudsman or his deputies
must first be removed from office via impeachment before they may be held
to answer for any wrong or misbehavior which may be proven against them
in disbarment proceedings.
The above Resolution was subsequently made the basis of the appellate
courts assailed Decision of 18 December 2000. Thus, in holding that a
Deputy Ombudsman is an impeachable officer, the appellate court stated
that it had to "defer to the loftier principle of adherence to judicial precedents,
otherwise known as the doctrine of Stare Decisis.... necessary for the
uniformity and continuity of the law and also to give stability to society." 27
Nevertheless, the court a quo took pains to point out that the 1987
Constitution, the deliberations thereon, and the opinions of constitutional law
experts all indicate that the Deputy Ombudsman is not an impeachable
officer.
Is the Deputy Ombudsman, then, an impeachable officer? Section 2, Article
XI of the 1987 Constitution, states that:
Sec. 2. The President, the Vice-President, the members of the Supreme
Court, the members of the Constitutional Commissions, and the Ombudsman
may be removed from office, on impeachment for, and conviction of, culpable
violation of the Constitution, treason, bribery, graft and corruption, other high
crimes, or betrayal of public trust. All other public officers and employees
may be removed from office as provided by law, but not by impeachment.
To determine whether or not the Ombudsman therein mentioned refers to a
person or to an office, reference was made by the appellate court to the
Records of the Constitutional Commission, as well as to the opinions of
leading commentators in constitutional law. Thus:
. . . It appears that the members of the Constitutional Commission have
made reference only to the Ombudsman as impeachable, excluding his
deputies. The pertinent portions of the record read, to wit:
...
MR. REGALADO. Yes, thank you.
On Section 10, regarding the Ombudsman, there has been concern aired by
Commissioner Rodrigo about who will see to it that the Ombudsman will
perform his duties because he is something like a guardian of the
government. This recalls the statement of Juvenal that while the
Ombudsman is the guardian of the people, "Quis custodiet ipsos custodies,"
who will guard the guardians? I understand here that the Ombudsman who
has the rank of a chairman of a constitutional commission is also removable
only by impeachment.
MR. ROMULO. That is the intention, Madam President.
MR. REGALADO. Only the Ombudsman?
MR. MONSOD. Only the Ombudsman.
MR. REGALADO. So not his deputies, because I am concerned with the
phrase "have the rank of." We know, for instance, that the City Fiscal of
Manila has the rank of a justice of the Intermediate Appellate Court, and yet
he is not a part of the judiciary. So I think we should clarify that also and read
our discussions into the Record for purposes of the Commission and the
Committee.
MR. ROMULO. Yes. If I may just comment: the Ombudsman in this provision
is a rank in itself really. That is how we look at it. But for purposes of
government classification and salary, we thought we have to give him a
recognizable or an existing rank as a point of reference more than anything
else.
MR. REGALADO. Yes, but my concern is whether or not he is removable
only by impeachment, because Section 2 enumerates the impeachable
officials, and it does not mention public officers with the rank of constitutional
commissioners.
MR. ROMULO. But we do mention them as the Ombudsman is mentioned in
that enumeration. We used the word "Ombudsman" because we would like it
to be his title; we do not want him called "Chairman" or "Justice." We want
him called Ombudsman.
...
(Records of the 1986 Constitutional Commission, Vol. II, July 26, 1986, pp.
273-274)
MR. DAVIDE. I will not insist.
On lines 13 and 14, I move for the deletion of the words "and the
Ombudsman." The Ombudsman should not be placed on the level of the
President and the Vice-President, the members of the judiciary and the
members of the Constitutional Commissions in the matter of removal from
office.
MR. MONSOD. Madam President.
THE PRESIDENT. Commissioner Monsod is recognized.
MR. MONSOD. We regret we cannot accept the amendment because we
feel that the Ombudsman is at least on the same level as the Constitutional
Commissioners and this is one way of insulating it from politics.
MR. DAVIDE. Madam President, to make the members of the Ombudsman
removable only by impeachment would be to enshrine and install an officer
whose functions are not as delicate as the others whom we wanted to protect
from immediate removal by way of an impeachment.
MR. MONSOD. We feel that an officer in the Ombudsman, if he does his
work well, could be stepping on a lot of toes. We would really prefer to keep
him there but we would like the body to vote on it, although I would like to ask
if we still have a quorum, Madam President.
THE PRESIDENT. Do we have a quorum? There are members who are in
the lounge.
The Secretary-General and the pages conduct an actual count of the
Commissioners present.
THE PRESIDENT. We have a quorum.
MR. MONSOD. May we restate the proposed amendment for the benefit of
those who were not here a few minutes ago.
MR. DE LOS REYES. Madam President, parliamentary inquiry. I thought that
amendment was already covered in the amendment of Commissioner
Rodrigo. One of those amendments proposed by Commissioner Rodrigo was
to delete the word "Ombudsman" and, therefore, we have already voted on it.
MR. DAVIDE. Madam President, may I comment on that.
THE PRESIDENT. Yes, the Gentleman may proceed.
MR. DAVIDE. The proposed amendment of Commissioner Rodrigo was the
total deletion of the Office of the Ombudsman and all sections relating to it. It
was rejected by the body and, therefore, we can have individual
amendments now on the particular sections.
THE PRESIDENT. The purpose of the amendment of Commissioner Davide
is not just to include the Ombudsman among those officials who have to be
removed from office only on impeachment. Is that right?
MR. DAVIDE. Yes, Madam President.
MR. RODRIGO. Before we vote on the amendment, may I ask a question?
THE PRESIDENT. Commissioner Rodrigo is recognized.
MR. RODRIGO. The Ombudsman, is this only one man?
MR. DAVIDE. Only one man.
MR. RODRIGO. Not including his deputies.
MR. MONSOD. No.
...
(Ibid., p. 305, emphasis supplied)
Moreover, this Court has likewise taken into account the commentaries of the
leading legal luminaries on the Constitution as to their opinion on whether or
not the Deputy Ombudsman is impeachable. All of them agree in unison that
the impeachable officers enumerated in Section 2, Article XI of the 1986
Constitution is exclusive. In their belief, only the Ombudsman, not his
deputies, is impeachable. Foremost among them is the erudite Justice
Isagani A. Cruz (ret.), who opined:
The impeachable officers are the President of the Philippines, the Vice-
President, the members of the Supreme Court, the members of the
Constitutional Commissions, and the Ombudsman. (see Art. XI, Sec. 2) The
list is exclusive and may not be increased or reduced by legislative
enactment. The power to impeach is essentially a non-legislative prerogative
and can be exercised by the Congress only within the limits of the authority
conferred upon it by the Constitution. This authority may not be expanded by
the grantee itself even if motivated by the desire to strengthen the security of
tenure of other officials of the government.
It is now provided by decree (see P.D. No. 1606) that justices of the
Sandiganbayan may be removed only through process of impeachment, the
purpose evidently being to withdraw them from the removal power of the
Supreme Court. This prohibition is of dubious constitutionality. In the first
place, the list of impeachable officers is covered by the maxim "expressio
unius est exclusio alterius." Secondly, Article VIII, Section 11, of the
Constitution states that all judges of inferior courts and this would include
the Sandiganbayan are under the disciplinary power of the Supreme Court
and may be removed by it. This view is bolstered by the last sentence of
Article XI, Section 2, which runs in full as follows:
Sec. 2. The President, the Vice-President, the members of the Supreme
Court, the members of the Constitutional Commissions, and the Ombudsman
may be removed from office, on impeachment for and conviction of, culpable
violation of the Constitution, treason, bribery, graft and corruption, other high
crimes, or betrayal of public trust. All other public officers and employees
may be removed from office as provided by law, but not by impeachment.
(Cruz, Isagani A., Philippine Political Law, 1996 ed., pp. 333-334)
Equally worth noting is the opinion of no less than Rev. Fr. Joaquin G.
Bernas, S.J., himself who was a member of the Constitutional Commission
which drafted the 1987 Constitution, (who) asserted:
Q. Is the list of officers subject to impeachment found in Section 2 exclusive?
A. As presently worded, yes.
(Bernas, Joaquin G., S.J., The 1987 Philippine Constitution, A Reviewer-
Primer, 1997 ed., p. 401)
Last but certainly not the least is the equally erudite Representative Antonio
B. Nachura himself, who, as a professor of law, commented that the
enumeration of impeachable officers in Section 2, Article XI of the 1987
Constitution, is exclusive. (Nachura, Antonio B., Outline/Reviewer in Political
Law, 1998 ed., p. 192)28
From the foregoing, it is immediately apparent that, as enumerated in Sec. 2
of Article XI of the 1987 Constitution, only the following are impeachable
officers: the President, the Vice President, the members of the Supreme
Court, the members of the Constitutional Commissions, and the
Ombudsman.29
How then to explain our earlier pronouncement in Cuenco v. Fernan, as later
cited in In Re: Raul M. Gonzales, Jarque v. Desierto and Lastimosa-
Dalawampu v. Dep. Ombudsman Mojica and Graft Investigator Labella? By
way of reiteration, said Resolution reads in part:
. . . To grant a complaint for disbarment of a Member of the Court during the
Members incumbency, would in effect be to circumvent and hence to run
afoul of the constitutional mandate that Members of the Court may be
removed from office only by impeachment for and conviction of certain
offenses listed in Article XI [2] of the Constitution. Precisely the same
situation exists in respect of the Ombudsman and his deputies (Article XI [8]
in relation to Article XI [2]), . . . all of whom are constitutionally required to be
members of the Philippine Bar.30 (Emphasis supplied)
In cross-referencing Sec. 2, which is an enumeration of impeachable officers,
with Sec. 8, which lists the qualifications of the Ombudsman and his
deputies, the intention was to indicate, by way of obiter dictum, that as with
members of this Court, the officers so enumerated were also constitutionally
required to be members of the bar.
WHEREFORE, the Order of the Court of Appeals dated 18 December 2000
is hereby REVERSED and SET ASIDE. The complaints in Criminal Case No.
OMB-0-00-0615 and Administrative Case No. OMB-ADM-0-00-0316 are
hereby REINSTATED and the Office of the Ombudsman is ordered to
proceed with the investigation relative to the above cases.

A dictum is an opinion that does not embody the resolution or determination SO ORDERED.
of the court, and made without argument, or full consideration of the point.
Mere dicta are not binding under the doctrine of stare decisis.31

The legal maxim "stare decisis et non quieta movere" (follow past precedents
and do not disturb what has been settled) states that where the same
questions relating to the same event have been put forward by parties
similarly situated as in a previous case litigated and decided by a competent
court, the rule of stare decisis is a bar to any attempt to relitigate the same
issue.32

The succeeding cases of In Re: Raul M. Gonzales and Jarque v. Desierto do

not tackle the impeachability of a Deputy Ombudsman either. Nor, for that
matter, does Lastimosa-Dalawampu v. Deputy Ombudsman Mojica and Graft
Investigator Labella, which, as previously mentioned, is a minute resolution
dismissing a complaint for disbarment against the herein private respondent
on the basis of the questioned obiter in Cuenco v. Fernan and the
succeeding cases without going into the merits.

Thus, where the issue involved was not raised nor presented to the court and
not passed upon by the court in the previous case, the decision in the
previous case is not stare decisis of the question presented.33

As to whether or not the private respondent, then Deputy Ombudsman for

the Visayas, may be held criminally and/or administratively liable, we likewise
resolve the issue in favor of the petitioner.

The rule that an impeachable officer cannot be criminally prosecuted for the
same offenses which constitute grounds for impeachment presupposes his
continuance in office.34 Hence, the moment he is no longer in office because
of his removal, resignation, or permanent disability, there can be no bar to his
criminal prosecution in the courts.35

Nor does retirement bar an administrative investigation from proceeding

against the private respondent, given that, as pointed out by the petitioner,
the formers retirement benefits have been placed on hold in view of the
provisions of Sections 1236 and 1337 of the Anti-Graft and Corrupt Practices
Act.
G.R. No. 193459 February 15, 2011
MA. MERCEDITAS N. GUTIERREZ Petitioner,
vs.
THE HOUSE OF REPRESENTATIVES COMMITTEE ON JUSTICE, RISA
HONTIVEROS-BARAQUEL, DANILO D. LIM, FELIPE PESTAO, EVELYN
PESTAO, RENATO M. REYES, JR., SECRETARY GENERAL OF
BAGONG ALYANSANG MAKABAYAN (BAYAN); MOTHER MARY JOHN
MANANZAN, CO-CHAIRPERSON OF PAGBABAGO; DANILO RAMOS,
SECRETARY-GENERAL OF KILUSANG MAGBUBUKID NG PILIPINAS
(KMP); ATTY. EDRE OLALIA, ACTING SECRETARY GENERAL OF THE
NATIONAL UNION OF PEOPLE'S LAWYERS (NUPL); FERDINAND R.
GAITE, CHAIRPERSON, CONFEDERATION FOR UNITY, RECOGNITION
AND ADVANCEMENT OF GOVERNMENT EMPLOYEES (COURAGE);
and JAMES TERRY RIDON OF THE LEAGUE OF FILIPINO STUDENTS
(LFS), Respondents.
FELICIANO BELMONTE, JR., Respondent-Intervenor.
DECISION
CARPIO MORALES, J.:
The Ombudsman, Ma. Merceditas Gutierrez (petitioner), challenges via
petition for certiorari and prohibition the Resolutions of September 1 and 7,
2010 of the House of Representatives Committee on Justice (public
respondent).
Before the 15th Congress opened its first session on July 26, 2010 (the
fourth Monday of July, in accordance with Section 15, Article VI of the
Constitution) or on July 22, 2010, private respondents Risa Hontiveros-
Baraquel, Danilo Lim, and spouses Felipe and Evelyn Pestao (Baraquel
group) filed an impeachment complaint1 against petitioner, upon the
endorsement of Party-List Representatives Arlene Bag-ao and Walden
Bello.2
A day after the opening of the 15th Congress or on July 27, 2010, Atty.
Marilyn Barua-Yap, Secretary General of the House of Representatives,
transmitted the impeachment complaint to House Speaker Feliciano
Belmonte, Jr.3 who, by Memorandum of August 2, 2010, directed the
Committee on Rules to include it in the Order of Business. 4
On August 3, 2010, private respondents Renato Reyes, Jr., Mother Mary
John Mananzan, Danilo Ramos, Edre Olalia, Ferdinand Gaite and James
Terry Ridon (Reyes group) filed another impeachment complaint5 against
petitioner with a resolution of endorsement by Party-List Representatives
Neri Javier Colmenares, Teodoro Casio, Rafael Mariano, Luzviminda
Ilagan, Antonio Tinio and Emerenciana de Jesus.6 On even date, the House
of Representatives provisionally adopted the Rules of Procedure in
Impeachment Proceedings of the 14th Congress. By letter still of even date, 7
the Secretary General transmitted the Reyes groups complaint to Speaker
Belmonte who, by Memorandum of August 9, 2010,8 also directed the
Committee on Rules to include it in the Order of Business.
On August 10, 2010, House Majority Leader Neptali Gonzales II, as
chairperson of the Committee on Rules,9 instructed Atty. Artemio Adasa, Jr.,
Deputy Secretary General for Operations, through Atty. Cesar Pareja,
Executive Director of the Plenary Affairs Department, to include the two
complaints in the Order of Business,10 which was complied with by their
inclusion in the Order of Business for the following day, August 11, 2010.
On August 11, 2010 at 4:47 p.m., during its plenary session, the House of
Representatives simultaneously referred both complaints to public
respondent.11
After hearing, public respondent, by Resolution of September 1, 2010, found
both complaints sufficient in form, which complaints it considered to have
been referred to it at exactly the same time.
Meanwhile, the Rules of Procedure in Impeachment Proceedings of the 15th
Congress was published on September 2, 2010.
On September 6, 2010, petitioner tried to file a motion to reconsider the
September 1, 2010 Resolution of public respondent. Public respondent
refused to accept the motion, however, for prematurity; instead, it advised
petitioner to await the notice for her to file an answer to the complaints,
drawing petitioner to furnish copies of her motion to each of the 55 members
of public respondent.
After hearing, public respondent, by Resolution of September 7, 2010, found
the two complaints, which both allege culpable violation of the Constitution
and betrayal of public trust,12 sufficient in substance. The determination of
the sufficiency of substance of the complaints by public respondent, which
assumed hypothetically the truth of their allegations, hinged on the issue of
whether valid judgment to impeach could be rendered thereon. Petitioner
was served also on September 7, 2010 a notice directing her to file an
answer to the complaints within 10 days.13
Six days following her receipt of the notice to file answer or on September
13, 2010, petitioner filed with this Court the present petition with application
for injunctive reliefs. The following day or on September 14, 2010, the Court
En Banc RESOLVED to direct the issuance of a status quo ante order14 and
to require respondents to comment on the petition in 10 days. The Court
subsequently, by Resolution of September 21, 2010, directed the Office of
the Solicitor General (OSG) to file in 10 days its Comment on the petition
The Baraquel group which filed the first complaint, the Reyes group which
filed the second complaint, and public respondent (through the OSG and
private counsel) filed their respective Comments on September 27, 29 and
30, 2010.
Speaker Belmonte filed a Motion for Leave to Intervene dated October 4,
2010 which the Court granted by Resolution of October 5, 2010.
Under an Advisory15 issued by the Court, oral arguments were conducted on
October 5 and 12, 2010, followed by petitioners filing of a Consolidated
Reply of October 15, 2010 and the filing by the parties of Memoranda within
the given 15-day period.
The petition is harangued by procedural objections which the Court shall first
resolve.
Respondents raise the impropriety of the remedies of certiorari and
prohibition. They argue that public respondent was not exercising any
judicial, quasi-judicial or ministerial function in taking cognizance of the two
impeachment complaints as it was exercising a political act that is
discretionary in nature,16 and that its function is inquisitorial that is akin to a
preliminary investigation.17
These same arguments were raised in Francisco, Jr. v. House of
Representatives.18 The argument that impeachment proceedings are beyond
the reach of judicial review was debunked in this wise:
The major difference between the judicial power of the Philippine Supreme
Court and that of the U.S. Supreme Court is that while the power of judicial
review is only impliedly granted to the U.S. Supreme Court and is
discretionary in nature, that granted to the Philippine Supreme Court and
lower courts, as expressly provided for in the Constitution, is not just a power
but also a duty, and it was given an expanded definition to include the power
to correct any grave abuse of discretion on the part of any government
branch or instrumentality.
There are also glaring distinctions between the U.S. Constitution and the
Philippine Constitution with respect to the power of the House of
Representatives over impeachment proceedings. While the U.S. Constitution
bestows sole power of impeachment to the House of Representatives without
limitation, our Constitution, though vesting in the House of Representatives
the exclusive power to initiate impeachment cases, provides for several
limitations to the exercise of such power as embodied in Section 3(2), (3), (4)
and (5), Article XI thereof. These limitations include the manner of filing,
required vote to impeach, and the one year bar on the impeachment of one
and the same official.
Respondents are also of the view that judicial review of impeachments
undermines their finality and may also lead to conflicts between Congress
and the judiciary. Thus, they call upon this Court to exercise judicial
statesmanship on the principle that "whenever possible, the Court should
defer to the judgment of the people expressed legislatively, recognizing full
well the perils of judicial willfulness and pride."
But did not the people also express their will when they instituted the above-
mentioned safeguards in the Constitution? This shows that the Constitution
did not intend to leave the matter of impeachment to the sole discretion of
Congress. Instead, it provided for certain well-defined limits, or in the
language of Baker v. Carr,"judicially discoverable standards" for determining
the validity of the exercise of such discretion, through the power of judicial
review.
xxxx
There is indeed a plethora of cases in which this Court exercised the power
of judicial review over congressional action. Thus, in Santiago v. Guingona,
Jr., this Court ruled that it is well within the power and jurisdiction of the Court
to inquire whether the Senate or its officials committed a violation of the
Constitution or grave abuse of discretion in the exercise of their functions and
prerogatives. In Taada v. Angara, in seeking to nullify an act of the
Philippine Senate on the ground that it contravened the Constitution, it held
that the petition raises a justiciable controversy and that when an action of
the legislative branch is seriously alleged to have infringed the Constitution, it
becomes not only the right but in fact the duty of the judiciary to settle the
dispute. In Bondoc v. Pineda, this Court declared null and void a resolution of
the House of Representatives withdrawing the nomination, and rescinding
the election, of a congressman as a member of the House Electoral Tribunal
for being violative of Section 17, Article VI of the Constitution. In Coseteng v.
Mitra, it held that the resolution of whether the House representation in the
Commission on Appointments was based on proportional representation of
the political parties as provided in Section 18, Article VI of the Constitution is
subject to judicial review. In Daza v. Singson, it held that the act of the House
of Representatives in removing the petitioner from the Commission on
Appointments is subject to judicial review. In Taada v. Cuenco, it held that
although under the Constitution, the legislative power is vested exclusively in
Congress, this does not detract from the power of the courts to pass upon
the constitutionality of acts of Congress. In Angara v. Electoral Commission,
it ruled that confirmation by the National Assembly of the election of any
member, irrespective of whether his election is contested, is not essential
before such member-elect may discharge the duties and enjoy the privileges
of a member of the National Assembly.
Finally, there exists no constitutional basis for the contention that the
exercise of judicial review over impeachment proceedings would upset the
system of checks and balances. Verily, the Constitution is to be interpreted
as a whole and "one section is not to be allowed to defeat another." Both are
integral components of the calibrated system of independence and
interdependence that insures that no branch of government act beyond the
powers assigned to it by the Constitution.19 (citations omitted; italics in the
original; underscoring supplied)
Francisco characterizes the power of judicial review as a duty which, as the
expanded certiorari jurisdiction20 of this Court reflects, includes the power 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."21
In the present case, petitioner invokes the Courts expanded certiorari
jurisdiction, using the special civil actions of certiorari and prohibition as
procedural vehicles. The Court finds it well-within its power to determine
whether public respondent committed a violation of the Constitution or
gravely abused its discretion in the exercise of its functions and prerogatives
that could translate as lack or excess of jurisdiction, which would require
corrective measures from the Court.
Indubitably, the Court is not asserting its ascendancy over the Legislature in
this instance, but simply upholding the supremacy of the Constitution as the
repository of the sovereign will.22
Respondents do not seriously contest all the essential requisites for the
exercise of judicial review, as they only assert that the petition is premature
and not yet ripe for adjudication since petitioner has at her disposal a plain,
speedy and adequate remedy in the course of the proceedings before public
respondent. Public respondent argues that when petitioner filed the present
petition23 on September 13, 2010, it had not gone beyond the determination
of the sufficiency of form and substance of the two complaints.
An aspect of the "case-or-controversy" requirement is the requisite of
ripeness.24 The question of ripeness is especially relevant in light of the
direct, adverse effect on an individual by the challenged conduct. 25 In the
present petition, there is no doubt that questions on, inter alia, the validity of
the simultaneous referral of the two complaints and on the need to publish as
a mode of promulgating the Rules of Procedure in Impeachment
Proceedings of the House (Impeachment Rules) present constitutional
vagaries which call for immediate interpretation.
The unusual act of simultaneously referring to public respondent two
impeachment complaints presents a novel situation to invoke judicial power.
Petitioner cannot thus be considered to have acted prematurely when she
took the cue from the constitutional limitation that only one impeachment
proceeding should be initiated against an impeachable officer within a period
of one year.
And so the Court proceeds to resolve the substantive issue whether
public respondent committed grave abuse of discretion amounting to lack or
excess of jurisdiction in issuing its two assailed Resolutions. Petitioner
basically anchors her claim on alleged violation of the due process clause
(Art. III, Sec. 1) and of the one-year bar provision (Art. XI, Sec 3, par. 5) of
the Constitution.
Due process of law
Petitioner alleges that public respondents chairperson, Representative Niel
Tupas, Jr. (Rep. Tupas), is the subject of an investigation she is conducting,
while his father, former Iloilo Governor Niel Tupas, Sr., had been charged by
her with violation of the Anti-Graft and Corrupt Practices Act before the
Sandiganbayan. To petitioner, the actions taken by her office against Rep.
Tupas and his father influenced the proceedings taken by public respondent
in such a way that bias and vindictiveness played a big part in arriving at the
finding of sufficiency of form and substance of the complaints against her.
The Court finds petitioners allegations of bias and vindictiveness bereft of
merit, there being hardly any indication thereof. Mere suspicion of partiality
does not suffice.26
The act of the head of a collegial body cannot be considered as that of the
entire body itself. So GMCR, Inc. v. Bell Telecommunications Phils.27
teaches:
First. We hereby declare that the NTC is a collegial body requiring a majority
vote out of the three members of the commission in order to validly decide a
case or any incident therein. Corollarily, the vote alone of the chairman of the
commission, as in this case, the vote of Commissioner Kintanar, absent the
required concurring vote coming from the rest of the membership of the
commission to at least arrive at a majority decision, is not sufficient to legally
render an NTC order, resolution or decision.
Simply put, Commissioner Kintanar is not the National Telecommunications
Commission. He alone does not speak and in behalf of the NTC. The NTC
acts through a three-man body x x x. 28
In the present case, Rep. Tupas, public respondent informs, did not, in fact,
vote and merely presided over the proceedings when it decided on the
sufficiency of form and substance of the complaints.29
Even petitioners counsel conceded during the oral arguments that there are
no grounds to compel the inhibition of Rep. Tupas.
JUSTICE CUEVAS:
Well, the Committee is headed by a gentleman who happened to be a
respondent in the charges that the Ombudsman filed. In addition to that[,] his
father was likewise a respondent in another case. How can he be expected
to act with impartiality, in fairness and in accordance with law under that
matter, he is only human we grant him that benefit.
JUSTICE MORALES:
Is he a one-man committee?
JUSTICE CUEVAS:
He is not a one-man committee, Your Honor, but he decides.
JUSTICE MORALES:
Do we presume good faith or we presume bad faith?
JUSTICE CUEVAS:
We presume that he is acting in good faith, Your Honor, but then
(interrupted)
JUSTICE MORALES:
So, that he was found liable for violation of the Anti Graft and Corrupt
Practices Act, does that mean that your client will be deprived of due process
of law?
JUSTICE CUEVAS:
No, what we are stating, Your Honor, is that expectation of a client goes with
the Ombudsman, which goes with the element of due process is the lack of
impartiality that may be expected of him.
JUSTICE MORALES:
But as you admitted the Committee is not a one-man committee?
JUSTICE CUEVAS:
That is correct, Your Honor.
JUSTICE MORALES:
So, why do you say then that there is a lack of impartiality?
JUSTICE CUEVAS:
Because if anything before anything goes (sic) he is the presiding officer of
the committee as in this case there were objections relative to the existence
of the implementing rules not heard, there was objection made by
Congressman Golez to the effect that this may give rise to a constitutional
crisis.
JUSTICE MORALES:
That called for a voluntary inhibition. Is there any law or rule you can cite
which makes it mandatory for the chair of the committee to inhibit given that
he had previously been found liable for violation of a law[?]
JUSTICE CUEVAS:
There is nothing, Your Honor. In our jurisprudence which deals with the
situation whereby with that background as the material or pertinent
antecedent that there could be no violation of the right of the petitioner to due
process. What is the effect of notice, hearing if the judgment cannot come
from an impartial adjudicator.30 (emphasis and underscoring supplied)
Petitioner contends that the "indecent and precipitate haste" of public
respondent in finding the two complaints sufficient in form and substance is a
clear indication of bias, she pointing out that it only took public respondent
five minutes to arrive thereat.lawphi1
An abbreviated pace in the conduct of proceedings is not per se an indication
of bias, however. So Santos-Concio v. Department of Justice31 holds:
Speed in the conduct of proceedings by a judicial or quasi-judicial officer
cannot per se be instantly attributed to an injudicious performance of
functions. For ones prompt dispatch may be anothers undue haste. The
orderly administration of justice remains as the paramount and constant
consideration, with particular regard of the circumstances peculiar to each
case.
The presumption of regularity includes the public officers official actuations
in all phases of work. Consistent with such presumption, it was incumbent
upon petitioners to present contradictory evidence other than a mere tallying
of days or numerical calculation. This, petitioners failed to discharge. The
swift completion of the Investigating Panels initial task cannot be relegated
as shoddy or shady without discounting the presumably regular performance
of not just one but five state prosecutors.32 (italics in the original; emphasis
and underscoring supplied)
Petitioner goes on to contend that her participation in the determination of
sufficiency of form and substance was indispensable. As mandated by the
Impeachment Rules, however, and as, in fact, conceded by petitioners
counsel, the participation of the impeachable officer starts with the filing of an
answer.
JUSTICE MORALES:
Is it not that the Committee should first determine that there is sufficiency in
form and substance before she is asked to file her answer (interrupted)
JUSTICE CUEVAS:
That is correct, Your Honor.
JUSTICE MORALES:
During which she can raise any defenses she can assail the regularity of the
proceedings and related irregularities?
JUSTICE CUEVAS:
Yes. We are in total conformity and in full accord with that statement, Your
Honor, because it is only after a determination that the complaint is sufficient
in form and substance that a complaint may be filed, Your Honor, without that
but it may be asked, how is not your action premature, Your Honor, our
answer is- no, because of the other violations involved and that is
(interrupted).33 (emphasis and underscoring supplied)
Rule III(A) of the Impeachment Rules of the 15th Congress reflects the
impeachment procedure at the Committee-level, particularly Section 534
which denotes that petitioners initial participation in the impeachment
proceedings the opportunity to file an Answer starts after the Committee
on Justice finds the complaint sufficient in form and substance. That the
Committee refused to accept petitioners motion for reconsideration from its
finding of sufficiency of form of the impeachment complaints is apposite,
conformably with the Impeachment Rules.
Petitioner further claims that public respondent failed to ascertain the
sufficiency of form and substance of the complaints on the basis of the
standards set by the Constitution and its own Impeachment Rules.35
The claim fails.
The determination of sufficiency of form and substance of an impeachment
complaint is an exponent of the express constitutional grant of rule-making
powers of the House of Representatives which committed such determinative
function to public respondent. In the discharge of that power and in the
exercise of its discretion, the House has formulated determinable standards
as to the form and substance of an impeachment complaint. Prudential
considerations behoove the Court to respect the compliance by the House of
its duty to effectively carry out the constitutional purpose, absent any
contravention of the minimum constitutional guidelines.
Contrary to petitioners position that the Impeachment Rules do not provide
for comprehensible standards in determining the sufficiency of form and
substance, the Impeachment Rules are clear in echoing the constitutional
requirements and providing that there must be a "verified complaint or
resolution,"36 and that the substance requirement is met if there is "a recital
of facts constituting the offense charged and determinative of the jurisdiction
of the committee."37
Notatu dignum is the fact that it is only in the Impeachment Rules where a
determination of sufficiency of form and substance of an impeachment
complaint is made necessary. This requirement is not explicitly found in the
organic law, as Section 3(2), Article XI of the Constitution basically merely
requires a "hearing."38 In the discharge of its constitutional duty, the House
deemed that a finding of sufficiency of form and substance in an
impeachment complaint is vital "to effectively carry out" the impeachment
process, hence, such additional requirement in the Impeachment Rules.
Petitioner urges the Court to look into the narration of facts constitutive of the
offenses vis--vis her submissions disclaiming the allegations in the
complaints.
This the Court cannot do.
Francisco instructs that this issue would "require the Court to make a
determination of what constitutes an impeachable offense. Such a
determination is a purely political question which the Constitution has left to
the sound discretion of the legislature. Such an intent is clear from the
deliberations of the Constitutional Commission. x x x x Clearly, the issue calls
upon this court to decide a non-justiciable political question which is beyond
the scope of its judicial power[.]"39 Worse, petitioner urges the Court to make
a preliminary assessment of certain grounds raised, upon a hypothetical
admission of the facts alleged in the complaints, which involve matters of
defense.
In another vein, petitioner, pursuing her claim of denial of due process,
questions the lack of or, more accurately, delay in the publication of the
Impeachment Rules.
To recall, days after the 15th Congress opened on July 26, 2010 or on
August 3, 2010, public respondent provisionally adopted the Impeachment
Rules of the 14th Congress and thereafter published on September 2, 2010
its Impeachment Rules, admittedly substantially identical with that of the 14th
Congress, in two newspapers of general circulation.40
Citing Taada v. Tuvera,41 petitioner contends that she was deprived of due
process since the Impeachment Rules was published only on September 2,
2010 a day after public respondent ruled on the sufficiency of form of the
complaints. She likewise tacks her contention on Section 3(8), Article XI of
the Constitution which directs that "Congress shall promulgate its rules on
impeachment to effectively carry out the purpose of this section."
Public respondent counters that "promulgation" in this case refers to "the
publication of rules in any medium of information, not necessarily in the
Official Gazette or newspaper of general circulation."42
Differentiating Neri v. Senate Committee on Accountability of Public Officers
and Investigations43 which held that the Constitution categorically requires
publication of the rules of procedure in legislative inquiries, public respondent
explains that the Impeachment Rules is intended to merely enable Congress
to effectively carry out the purpose of Section 3(8), Art. XI of Constitution.
Blacks Law Dictionary broadly defines promulgate as
To publish; to announce officially; to make public as important or obligatory.
The formal act of announcing a statute or rule of court. An administrative
order that is given to cause an agency law or regulation to become known or
obligatory.44 (emphasis supplied)
While "promulgation" would seem synonymous to "publication," there is a
statutory difference in their usage.
The Constitution notably uses the word "promulgate" 12 times.45 A number of
those instances involves the promulgation of various rules, reports and
issuances emanating from Congress, this Court, the Office of the
Ombudsman as well as other constitutional offices.
To appreciate the statutory difference in the usage of the terms "promulgate"
and "publish," the case of the Judiciary is in point. In promulgating rules
concerning the protection and enforcement of constitutional rights, pleading,
practice and procedure in all courts, the Court has invariably required the
publication of these rules for their effectivity. As far as promulgation of
judgments is concerned, however, promulgation means "the delivery of the
decision to the clerk of court for filing and publication."46
Section 4, Article VII of the Constitution contains a similar provision directing
Congress to "promulgate its rules for the canvassing of the certificates" in the
presidential and vice presidential elections. Notably, when Congress
approved its canvassing rules for the May 14, 2010 national elections on May
25, 2010,47 it did not require the publication thereof for its effectivity. Rather,
Congress made the canvassing rules effective upon its adoption.
In the case of administrative agencies, "promulgation" and "publication"
likewise take on different meanings as they are part of a multi-stage
procedure in quasi-legislation. As detailed in one case,48 the publication of
implementing rules occurs after their promulgation or adoption.
Promulgation must thus be used in the context in which it is generally
understoodthat is, to make known. Generalia verba sunt generaliter
inteligencia. What is generally spoken shall be generally understood.
Between the restricted sense and the general meaning of a word, the general
must prevail unless it was clearly intended that the restricted sense was to be
used.49
Since the Constitutional Commission did not restrict "promulgation" to
"publication," the former should be understood to have been used in its
general sense. It is within the discretion of Congress to determine on how to
promulgate its Impeachment Rules, in much the same way that the Judiciary
is permitted to determine that to promulgate a decision means to deliver the
decision to the clerk of court for filing and publication.
It is not for this Court to tell a co-equal branch of government how to
promulgate when the Constitution itself has not prescribed a specific method
of promulgation. The Court is in no position to dictate a mode of promulgation
beyond the dictates of the Constitution.
Publication in the Official Gazette or a newspaper of general circulation is but
one avenue for Congress to make known its rules. Jurisprudence
emphatically teaches that
x x x in the absence of constitutional or statutory guidelines or specific rules,
this Court is devoid of any basis upon which to determine the legality of the
acts of the Senate relative thereto. On grounds of respect for the basic
concept of separation of powers, courts may not intervene in the internal
affairs of the legislature; it is not within the province of courts to direct
Congress how to do its work. In the words of Justice Florentino P. Feliciano,
this Court is of the opinion that where no specific, operable norms and
standards are shown to exist, then the legislature must be given a real and
effective opportunity to fashion and promulgate as well as to implement
them, before the courts may intervene.50 (italics in the original; emphasis and
underscoring supplied; citations omitted)
Had the Constitution intended to have the Impeachment Rules published, it
could have stated so as categorically as it did in the case of the rules of
procedure in legislative inquiries, per Neri. Other than "promulgate," there is
no other single formal term in the English language to appropriately refer to
an issuance without need of it being published.
IN FINE, petitioner cannot take refuge in Neri since inquiries in aid of
legislation under Section 21, Article VI of the Constitution is the sole instance
in the Constitution where there is a categorical directive to duly publish a
set of rules of procedure. Significantly notable in Neri is that with respect to
the issue of publication, the Court anchored its ruling on the 1987
Constitutions directive, without any reliance on or reference to the 1986 case
of Taada v. Tuvera.51 Taada naturally could neither have interpreted a
forthcoming 1987 Constitution nor had kept a tight rein on the Constitutions
intentions as expressed through the allowance of either a categorical term or
a general sense of making known the issuances.
From the deliberations of the Constitutional Commission, then
Commissioner, now retired Associate Justice Florenz Regalado intended
Section 3(8), Article XI to be the vehicle for the House to fill the gaps in the
impeachment process.
MR. REGALADO. Mr. Presiding Officer, I have decided to put in an additional
section because, for instance, under Section 3 (2), there is mention of
indorsing a verified complaint for impeachment by any citizen alleging
ultimate facts constituting a ground or grounds for impeachment. In other
words, it is just like a provision in the rules of court. Instead, I propose that
this procedural requirement, like indorsement of a complaint by a citizen to
avoid harassment or crank complaints, could very well be taken up in a new
section 4 which shall read as follows: THE CONGRESS SHALL
PROMULGATE ITS RULES ON IMPEACHMENT TO EFFECTIVELY
CARRY OUT THE PURPOSES THEREOF. I think all these other procedural
requirements could be taken care of by the Rules of Congress.52 (emphasis
and underscoring supplied)
The discussion clearly rejects the notion that the impeachment provisions are
not self-executing. Section 3(8) does not, in any circumstance, operate to
suspend the entire impeachment mechanism which the Constitutional
Commission took pains in designing even its details.
As against constitutions of the past, modern constitutions have been
generally drafted upon a different principle and have often become in effect
extensive codes of laws intended to operate directly upon the people in a
manner similar to that of statutory enactments, and the function of
constitutional conventions has evolved into one more like that of a legislative
body. Hence, unless it is expressly provided that a legislative act is
necessary to enforce a constitutional mandate, the presumption now is
that all provisions of the constitution are self-executing. If the
constitutional provisions are treated as requiring legislation instead of self-
executing, the legislature would have the power to ignore and practically
nullify the mandate of the fundamental law. This can be cataclysmic. That is
why the prevailing view is, as it has always been, that
. . . in case of doubt, the Constitution should be considered self-
executing rather than non-self-executing . . . . Unless the contrary is
clearly intended, the provisions of the Constitution should be considered self-
executing, as a contrary rule would give the legislature discretion to
determine when, or whether, they shall be effective. These provisions would
be subordinated to the will of the lawmaking body, which could make them
entirely meaningless by simply refusing to pass the needed implementing
statute.53 (emphasis and underscoring supplied)
Even assuming arguendo that publication is required, lack of it does not
nullify the proceedings taken prior to the effectivity of the Impeachment Rules
which faithfully comply with the relevant self-executing provisions of the
Constitution. Otherwise, in cases where impeachment complaints are filed at
the start of each Congress, the mandated periods under Section 3, Article XI
of the Constitution would already run or even lapse while awaiting the
expiration of the 15-day period of publication prior to the effectivity of the
Impeachment Rules. In effect, the House would already violate the
Constitution for its inaction on the impeachment complaints pending the
completion of the publication requirement.
Given that the Constitution itself states that any promulgation of the rules on
impeachment is aimed at "effectively carry[ing] out the purpose" of
impeachment proceedings, the Court finds no grave abuse of discretion
when the House deemed it proper to provisionally adopt the Rules on
Impeachment of the 14th Congress, to meet the exigency in such situation of
early filing and in keeping with the "effective" implementation of the "purpose"
of the impeachment provisions. In other words, the provisional adoption of
the previous Congress Impeachment Rules is within the power of the House
to promulgate its rules on impeachment to effectively carry out the avowed
purpose.
Moreover, the rules on impeachment, as contemplated by the framers of the
Constitution, merely aid or supplement the procedural aspects of
impeachment. Being procedural in nature, they may be given retroactive
application to pending actions. "It is axiomatic that the retroactive application
of procedural laws does not violate any right of a person who may feel that
he is adversely affected, nor is it constitutionally objectionable. The reason
for this is that, as a general rule, no vested right may attach to, nor arise
from, procedural laws."54 In the present case, petitioner fails to allege any
impairment of vested rights.
It bears stressing that, unlike the process of inquiry in aid of legislation where
the rights of witnesses are involved, impeachment is primarily for the
protection of the people as a body politic, and not for the punishment of the
offender.55
Even Neri concedes that the unpublished rules of legislative inquiries were
not considered null and void in its entirety. Rather,
x x x [o]nly those that result in violation of the rights of witnesses should be
considered null and void, considering that the rationale for the publication is
to protect the rights of witnesses as expressed in Section 21, Article VI of the
Constitution. Sans such violation, orders and proceedings are considered
valid and effective.56 (emphasis and underscoring supplied)
Petitioner in fact does not deny that she was fully apprised of the proper
procedure. She even availed of and invoked certain provisions57 of the
Impeachment Rules when she, on September 7, 2010, filed the motion for
reconsideration and later filed the present petition. The Court thus finds no
violation of the due process clause.
The one-year bar rule
Article XI, Section 3, paragraph (5) of the Constitution reads: "No
impeachment proceedings shall be initiated against the same official more
than once within a period of one year."
Petitioner reckons the start of the one-year bar from the filing of the first
impeachment complaint against her on July 22, 2010 or four days before the
opening on July 26, 2010 of the 15th Congress. She posits that within one
year from July 22, 2010, no second impeachment complaint may be
accepted and referred to public respondent.
On the other hand, public respondent, respondent Reyes group and
respondent-intervenor submit that the initiation starts with the filing of the
impeachment complaint and ends with the referral to the Committee,
following Francisco, but venture to alternatively proffer that the initiation ends
somewhere between the conclusion of the Committee Report and the
transmittal of the Articles of Impeachment to the Senate. Respondent
Baraquel group, meanwhile, essentially maintains that under either the
prevailing doctrine or the parties interpretation, its impeachment complaint
could withstand constitutional scrutiny.
Contrary to petitioners asseveration, Francisco58 states that the term
"initiate" means to file the complaint and take initial action on it.59 The
initiation starts with the filing of the complaint which must be accompanied
with an action to set the complaint moving. It refers to the filing of the
impeachment complaint coupled with Congress taking initial action of said
complaint. The initial action taken by the House on the complaint is the
referral of the complaint to the Committee on Justice.
Petitioner misreads the remark of Commissioner Joaquin Bernas, S.J. that
"no second verified impeachment may be accepted and referred to the
Committee on Justice for action"60 which contemplates a situation where a
first impeachment complaint had already been referred. Bernas and
Regalado, who both acted as amici curiae in Francisco, affirmed that the act
of initiating includes the act of taking initial action on the complaint.
From the records of the Constitutional Commission, to the amicus curiae
briefs of two former Constitutional Commissioners, it is without a doubt that
the term "to initiate" refers to the filing of the impeachment complaint coupled
with Congress' taking initial action of said complaint.
Having concluded that the initiation takes place by the act of filing and
referral or endorsement of the impeachment complaint to the House
Committee on Justice or, by the filing by at least one-third61 of the members
of the House of Representatives with the Secretary General of the House,
the meaning of Section 3 (5) of Article XI becomes clear. Once an
impeachment complaint has been initiated, another impeachment complaint
may not be filed against the same official within a one year period. 62
(emphasis and underscoring supplied)
The Court, in Francisco, thus found that the assailed provisions of the 12th
Congress Rules of Procedure in Impeachment Proceedings Sections 16 63
and 1764 of Rule V thereof "clearly contravene Section 3(5) of Article XI
since they g[a]ve the term initiate a meaning different from filing and
referral."65
Petitioner highlights certain portions of Francisco which delve on the relevant
records of the Constitutional Commission, particularly Commissioner
Maambongs statements66 that the initiation starts with the filing of the
complaint.
Petitioner fails to consider the verb "starts" as the operative word.
Commissioner Maambong was all too keen to stress that the filing of the
complaint indeed starts the initiation and that the Houses action on the
committee report/resolution is not part of that initiation phase.
Commissioner Maambong saw the need "to be very technical about this,"67
for certain exchanges in the Constitutional Commission deliberations loosely
used the term, as shown in the following exchanges.
MR. DAVIDE. That is for conviction, but not for initiation. Initiation of
impeachment proceedings still requires a vote of one-fifth of the membership
of the House under the 1935 Constitution.
MR. MONSOD. A two-thirds vote of the membership of the House is required
to initiate proceedings.
MR. DAVIDE. No. for initiation of impeachment proceedings, only one-fifth
vote of the membership of the House is required; for conviction, a two-
thirds vote of the membership is required.
xxxx
MR. DAVIDE. However, if we allow one-fifth of the membership of the
legislature to overturn a report of the committee, we have here Section 3 (4)
which reads:
No impeachment proceedings shall be initiated against the same official
more than once within a period of one year.
So, necessarily, under this particular subsection, we will, in effect, disallow
one-fifth of the members of the National Assembly to revive an impeachment
move by an individual or an ordinary Member.
MR. ROMULO. Yes. May I say that Section 3 (4) is there to look towards the
possibility of a very liberal impeachment proceeding. Second, we were
ourselves struggling with that problem where we are faced with just a verified
complaint rather than the signatures of one-fifth, or whatever it is we decide,
of the Members of the House. So whether to put a period for the Committee
to report, whether we should not allow the Committee to overrule a mere
verified complaint, are some of the questions we would like to be discussed.
MR. DAVIDE. We can probably overrule a rejection by the Committee by
providing that it can be overturned by, say, one-half or a majority, or one-fifth
of the members of the legislature, and that such overturning will not amount
to a refiling which is prohibited under Section 3 (4).
Another point, Madam President. x x x68 (emphasis and underscoring
supplied)
An apparent effort to clarify the term "initiate" was made by Commissioner
Teodulo Natividad:
MR. NATIVIDAD. How many votes are needed to initiate?
MR. BENGZON. One-third.
MR. NATIVIDAD. To initiate is different from to impeach; to impeach is
different from to convict. To impeach means to file the case before the
Senate.
MR. REGALADO. When we speak of "initiative," we refer here to the
Articles of Impeachment.
MR. NATIVIDAD. So, that is the impeachment itself, because when we
impeach, we are charging him with the Articles of Impeachment. That is my
understanding.69 (emphasis and underscoring supplied)
Capping these above-quoted discussions was the explanation of
Commissioner Maambong delivered on at least two occasions:
[I]
MR. MAAMBONG. Mr. Presiding Officer, I am not moving for a
reconsideration of the approval of the amendment submitted by
Commissioner Regalado, but I will just make of record my thinking that we do
not really initiate the filing of the Articles of Impeachment on the floor. The
procedure, as I have pointed out earlier, was that the initiation starts with the
filing of the complaint. And what is actually done on the floor is that the
committee resolution containing the Articles of Impeachment is the one
approved by the body.
As the phraseology now runs, which may be corrected by the Committee on
Style, it appears that the initiation starts on the floor. If we only have time, I
could cite examples in the case of the impeachment proceedings of
President Richard Nixon wherein the Committee on the Judiciary submitted
the recommendation, the resolution, and the Articles of Impeachment to the
body, and it was the body who approved the resolution. It is not the body
which initiates it. It only approves or disapproves the resolution. So, on that
score, probably the Committee on Style could help in rearranging the words
because we have to be very technical about this. I have been bringing with
me The Rules of the House of Representatives of the U.S. Congress. The
Senate Rules are with me. The proceedings on the case of Richard Nixon
are with me. I have submitted my proposal, but the Committee has already
decided. Nevertheless, I just want to indicate this on record.
Thank you, Mr. Presiding Officer.70 (italics in the original; emphasis and
underscoring supplied)
[II]
MR. MAAMBONG. I would just like to move for a reconsideration of the
approval of Section 3 (3). My reconsideration will not at all affect the
substance, but it is only with keeping with the exact formulation of the Rules
of the House of Representatives of the United States regarding
impeachment.
I am proposing, Madam President, without doing damage to any of its
provision, that on page 2, Section 3 (3), from lines 17 to 18, we delete the
words which read: "to initiate impeachment proceedings" and the comma (,)
and insert on line 19 after the word "resolution" the phrase WITH THE
ARTICLES, and then capitalize the letter "i" in "impeachment" and replace
the word "by" with OF, so that the whole section will now read: "A vote of at
least one-third of all the Members of the House shall be necessary either to
affirm a resolution WITH THE ARTICLES of impeachment OF the committee
or to override its contrary resolution. The vote of each Member shall be
recorded."
I already mentioned earlier yesterday that the initiation, as far as the House
of Representatives of the United States is concerned, really starts from the
filing of the verified complaint and every resolution to impeach always carries
with it the Articles of Impeachment. As a matter of fact, the words "Articles of
Impeachment" are mentioned on line 25 in the case of the direct filing of a
verified complaint of one-third of all the Members of the House. I will mention
again, Madam President, that my amendment will not vary the substance in
any way. It is only in keeping with the uniform procedure of the House of
Representatives of the United States Congress.
Thank you, Madam President.71 (emphasis and underscoring supplied)
To the next logical question of what ends or completes the initiation,
Commissioners Bernas and Regalado lucidly explained that the filing of the
complaint must be accompanied by the referral to the Committee on Justice,
which is the action that sets the complaint moving. Francisco cannot be any
clearer in pointing out the material dates.
Having concluded that the initiation takes place by the act of filing of the
impeachment complaint and referral to the House Committee on Justice, the
initial action taken thereon, the meaning of Section 3 (5) of Article XI
becomes clear. Once an impeachment complaint has been initiated in the
foregoing manner, another may not be filed against the same official within a
one year period following Article XI, Section 3(5) of the Constitution.
In fine, considering that the first impeachment complaint was filed by former
President Estrada against Chief Justice Hilario G. Davide, Jr., along with
seven associate justices of this Court, on June 2, 2003 and referred to the
House Committee on Justice on August 5, 2003, the second impeachment
complaint filed by Representatives Gilberto C. Teodoro, Jr. and Felix William
Fuentebella against the Chief Justice on October 23, 2003 violates the
constitutional prohibition against the initiation of impeachment proceedings
against the same impeachable officer within a one-year period.72 (emphasis,
italics and underscoring supplied)
These clear pronouncements notwithstanding, petitioner posits that the date
of referral was considered irrelevant in Francisco. She submits that referral
could not be the reckoning point of initiation because "something prior to that
had already been done,"73 apparently citing Bernas discussion.
The Court cannot countenance any attempt at obscurantism.
What the cited discussion was rejecting was the view that the Houses action
on the committee report initiates the impeachment proceedings. It did not
state that to determine the initiating step, absolutely nothing prior to it must
be done. Following petitioners line of reasoning, the verification of the
complaint or the endorsement by a member of the House steps done prior
to the filing would already initiate the impeachment proceedings.
Contrary to petitioners emphasis on impeachment complaint, what the
Constitution mentions is impeachment "proceedings." Her reliance on the
singular tense of the word "complaint"74 to denote the limit prescribed by the
Constitution goes against the basic rule of statutory construction that a word
covers its enlarged and plural sense.75
The Court, of course, does not downplay the importance of an impeachment
complaint, for it is the matchstick that kindles the candle of impeachment
proceedings. The filing of an impeachment complaint is like the lighting of a
matchstick. Lighting the matchstick alone, however, cannot light up the
candle, unless the lighted matchstick reaches or torches the candle wick.
Referring the complaint to the proper committee ignites the impeachment
proceeding. With a simultaneous referral of multiple complaints filed, more
than one lighted matchsticks light the candle at the same time. What is
important is that there should only be ONE CANDLE that is kindled in a year,
such that once the candle starts burning, subsequent matchsticks can no
longer rekindle the candle.
A restrictive interpretation renders the impeachment mechanism both illusive
and illusory.
For one, it puts premium on senseless haste. Petitioners stance suggests
that whoever files the first impeachment complaint exclusively gets the
attention of Congress which sets in motion an exceptional once-a-year
mechanism wherein government resources are devoted. A prospective
complainant, regardless of ill motives or best intentions, can wittingly or
unwittingly desecrate the entire process by the expediency of submitting a
haphazard complaint out of sheer hope to be the first in line. It also puts to
naught the effort of other prospective complainants who, after diligently
gathering evidence first to buttress the case, would be barred days or even
hours later from filing an impeachment complaint.
Placing an exceedingly narrow gateway to the avenue of impeachment
proceedings turns its laudable purpose into a laughable matter. One needs
only to be an early bird even without seriously intending to catch the worm,
when the process is precisely intended to effectively weed out "worms" in
high offices which could otherwise be ably caught by other prompt birds
within the ultra-limited season.
Moreover, the first-to-file scheme places undue strain on the part of the
actual complainants, injured party or principal witnesses who, by mere
happenstance of an almost always unforeseeable filing of a first
impeachment complaint, would be brushed aside and restricted from directly
participating in the impeachment process.
Further, prospective complainants, along with their counsel and members of
the House of Representatives who sign, endorse and file subsequent
impeachment complaints against the same impeachable officer run the risk
of violating the Constitution since they would have already initiated a second
impeachment proceeding within the same year. Virtually anybody can initiate
a second or third impeachment proceeding by the mere filing of endorsed
impeachment complaints. Without any public notice that could charge them
with knowledge, even members of the House of Representatives could not
readily ascertain whether no other impeachment complaint has been filed at
the time of committing their endorsement.
The question as to who should administer or pronounce that an
impeachment proceeding has been initiated rests also on the body that
administers the proceedings prior to the impeachment trial. As gathered from
Commissioner Bernas disquisition76 in Francisco, a proceeding which "takes
place not in the Senate but in the House"77 precedes the bringing of an
impeachment case to the Senate. In fact, petitioner concedes that the
initiation of impeachment proceedings is within the sole and absolute control
of the House of Representatives.78 Conscious of the legal import of each
step, the House, in taking charge of its own proceedings, must deliberately
decide to initiate an impeachment proceeding, subject to the time frame and
other limitations imposed by the Constitution. This chamber of Congress
alone, not its officers or members or any private individual, should own up to
its processes.
The Constitution did not place the power of the "final say" on the lips of the
House Secretary General who would otherwise be calling the shots in
forwarding or freezing any impeachment complaint. Referral of the complaint
to the proper committee is not done by the House Speaker alone either,
which explains why there is a need to include it in the Order of Business of
the House. It is the House of Representatives, in public plenary session,
which has the power to set its own chamber into special operation by
referring the complaint or to otherwise guard against the initiation of a second
impeachment proceeding by rejecting a patently unconstitutional complaint.
Under the Rules of the House, a motion to refer is not among those motions
that shall be decided without debate, but any debate thereon is only made
subject to the five-minute rule.79 Moreover, it is common parliamentary
practice that a motion to refer a matter or question to a committee may be
debated upon, not as to the merits thereof, but only as to the propriety of the
referral.80 With respect to complaints for impeachment, the House has the
discretion not to refer a subsequent impeachment complaint to the
Committee on Justice where official records and further debate show that an
impeachment complaint filed against the same impeachable officer has
already been referred to the said committee and the one year period has not
yet expired, lest it becomes instrumental in perpetrating a constitutionally
prohibited second impeachment proceeding. Far from being mechanical,
before the referral stage, a period of deliberation is afforded the House, as
the Constitution, in fact, grants a maximum of three session days within
which to make the proper referral.
As mentioned, one limitation imposed on the House in initiating an
impeachment proceeding deals with deadlines. The Constitution states that
"[a] verified complaint for impeachment may be filed by any Member of the
House of Representatives or by any citizen upon a resolution or
endorsement by any Member thereof, which shall be included in the Order of
Business within ten session days, and referred to the proper Committee
within three session days thereafter."
In the present case, petitioner failed to establish grave abuse of discretion on
the allegedly "belated" referral of the first impeachment complaint filed by the
Baraquel group. For while the said complaint was filed on July 22, 2010,
there was yet then no session in Congress. It was only four days later or on
July 26, 2010 that the 15th Congress opened from which date the 10-day
session period started to run. When, by Memorandum of August 2, 2010,
Speaker Belmonte directed the Committee on Rules to include the complaint
in its Order of Business, it was well within the said 10-day session period.81
There is no evident point in rushing at closing the door the moment an
impeachment complaint is filed. Depriving the people (recall that
impeachment is primarily for the protection of the people as a body politic) of
reasonable access to the limited political vent simply prolongs the agony and
frustrates the collective rage of an entire citizenry whose trust has been
betrayed by an impeachable officer. It shortchanges the promise of
reasonable opportunity to remove an impeachable officer through the
mechanism enshrined in the Constitution.
But neither does the Court find merit in respondents alternative contention
that the initiation of the impeachment proceedings, which sets into motion the
one-year bar, should include or await, at the earliest, the Committee on
Justice report. To public respondent, the reckoning point of initiation should
refer to the disposition of the complaint by the vote of at least one-third (1/3)
of all the members of the House.82 To the Reyes group, initiation means the
act of transmitting the Articles of Impeachment to the Senate.83 To
respondent-intervenor, it should last until the Committee on Justices
recommendation to the House plenary.84
The Court, in Francisco, rejected a parallel thesis in which a related
proposition was inputed in the therein assailed provisions of the
Impeachment Rules of the 12th Congress. The present case involving an
impeachment proceeding against the Ombudsman offers no cogent reason
for the Court to deviate from what was settled in Francisco that dealt with the
impeachment proceeding against the then Chief Justice. To change the
reckoning point of initiation on no other basis but to accommodate the socio-
political considerations of respondents does not sit well in a court of law.
x x x We ought to be guided by the doctrine of stare decisis et non quieta
movere. This doctrine, which is really "adherence to precedents," mandates
that once a case has been decided one way, then another case involving
exactly the same point at issue should be decided in the same manner. This
doctrine is one of policy grounded on the necessity for securing certainty and
stability of judicial decisions. As the renowned jurist Benjamin Cardozo stated
in his treatise The Nature of the Judicial Process:
It will not do to decide the same question one way between one set of
litigants and the opposite way between another. "If a group of cases involves
the same point, the parties expect the same decision. It would be a gross
injustice to decide alternate cases on opposite principles. If a case was
decided against me yesterday when I was a defendant, I shall look for the
same judgment today if I am plaintiff. To decide differently would raise a
feeling of resentment and wrong in my breast; it would be an infringement,
material and moral, of my rights." Adherence to precedent must then be the
rule rather than the exception if litigants are to have faith in the even-handed
administration of justice in the courts.85
As pointed out in Francisco, the impeachment proceeding is not initiated
"when the House deliberates on the resolution passed on to it by the
Committee, because something prior to that has already been done. The
action of the House is already a further step in the proceeding, not its
initiation or beginning. Rather, the proceeding is initiated or begins, when a
verified complaint is filed and referred to the Committee on Justice for action.
This is the initiating step which triggers the series of steps that follow."86
Allowing an expansive construction of the term "initiate" beyond the act of
referral allows the unmitigated influx of successive complaints, each having
their own respective 60-session-day period of disposition from referral.
Worse, the Committee shall conduct overlapping hearings until and unless
the disposition of one of the complaints ends with the affirmance of a
resolution for impeachment or the overriding87 of a contrary resolution (as
espoused by public respondent), or the House transmits the Articles of
Impeachment (as advocated by the Reyes group),88 or the Committee on
Justice concludes its first report to the House plenary regardless of the
recommendation (as posited by respondent-intervenor). Each of these
scenarios runs roughshod the very purpose behind the constitutionally
imposed one-year bar. Opening the floodgates too loosely would disrupt the
series of steps operating in unison under one proceeding.
The Court does not lose sight of the salutary reason of confining only one
impeachment proceeding in a year. Petitioner concededly cites Justice
Adolfo Azcunas separate opinion that concurred with the Francisco ruling.89
Justice Azcuna stated that the purpose of the one-year bar is two-fold: "to
prevent undue or too frequent harassment; and 2) to allow the legislature to
do its principal task [of] legislation," with main reference to the records of the
Constitutional Commission, that reads:
MR. ROMULO. Yes, the intention here really is to limit. This is not only to
protect public officials who, in this case, are of the highest category from
harassment but also to allow the legislative body to do its work which is
lawmaking. Impeachment proceedings take a lot of time. And if we allow
multiple impeachment charges on the same individual to take place, the
legislature will do nothing else but that.90 (underscoring supplied)
It becomes clear that the consideration behind the intended limitation refers
to the element of time, and not the number of complaints. The impeachable
officer should defend himself in only one impeachment proceeding, so that
he will not be precluded from performing his official functions and duties.
Similarly, Congress should run only one impeachment proceeding so as not
to leave it with little time to attend to its main work of law-making. The
doctrine laid down in Francisco that initiation means filing and referral
remains congruent to the rationale of the constitutional provision.
Petitioner complains that an impeachable officer may be subjected to
harassment by the filing of multiple impeachment complaints during the
intervening period of a maximum of 13 session days between the date of the
filing of the first impeachment complaint to the date of referral.
As pointed out during the oral arguments91 by the counsel for respondent-
intervenor, the framework of privilege and layers of protection for an
impeachable officer abound. The requirements or restrictions of a one-year
bar, a single proceeding, verification of complaint, endorsement by a House
member, and a finding of sufficiency of form and substance all these must
be met before bothering a respondent to answer already weigh heavily in
favor of an impeachable officer.
Aside from the probability of an early referral and the improbability of
inclusion in the agenda of a complaint filed on the 11th hour (owing to pre-
agenda standard operating procedure), the number of complaints may still be
filtered or reduced to nil after the Committee decides once and for all on the
sufficiency of form and substance. Besides, if only to douse petitioners fear,
a complaint will not last the primary stage if it does not have the stated
preliminary requisites.
To petitioner, disturbance of her performance of official duties and the
deleterious effects of bad publicity are enough oppression.
Petitioners claim is based on the premise that the exertion of time, energy
and other resources runs directly proportional to the number of complaints
filed. This is non sequitur. What the Constitution assures an impeachable
officer is not freedom from arduous effort to defend oneself, which depends
on the qualitative assessment of the charges and evidence and not on the
quantitative aspect of complaints or offenses. In considering the side of the
impeachable officers, the Constitution does not promise an absolutely
smooth ride for them, especially if the charges entail genuine and grave
issues. The framers of the Constitution did not concern themselves with the
media tolerance level or internal disposition of an impeachable officer when
they deliberated on the impairment of performance of official functions. The
measure of protection afforded by the Constitution is that if the impeachable
officer is made to undergo such ride, he or she should be made to traverse it
just once. Similarly, if Congress is called upon to operate itself as a vehicle, it
should do so just once. There is no repeat ride for one full year. This is the
whole import of the constitutional safeguard of one-year bar rule.
Applicability of the Rules on Criminal Procedure
On another plane, petitioner posits that public respondent gravely abused its
discretion when it disregarded its own Impeachment Rules, the same rules
she earlier chastised.
In the exercise of the power to promulgate rules "to effectively carry out" the
provisions of Section 3, Article XI of the Constitution, the House promulgated
the Impeachment Rules, Section 16 of which provides that "the Rules of
Criminal Procedure under the Rules of Court shall, as far as practicable,
apply to impeachment proceedings before the House."
Finding that the Constitution, by express grant, permits the application of
additional adjective rules that Congress may consider in effectively carrying
out its mandate, petitioner either asserts or rejects two procedural devices.
First is on the "one offense, one complaint" rule. By way of reference to
Section 16 of the Impeachment Rules, petitioner invokes the application of
Section 13, Rule 110 of the Rules on Criminal Procedure which states that
"[a] complaint or information must charge only one offense, except when the
law prescribes a single punishment for various offenses." To petitioner, the
two impeachment complaints are insufficient in form and substance since
each charges her with both culpable violation of the Constitution and betrayal
of public trust. She concludes that public respondent gravely abused its
discretion when it disregarded its own rules.
Petitioner adds that heaping two or more charges in one complaint will
confuse her in preparing her defense; expose her to the grave dangers of the
highly political nature of the impeachment process; constitute a whimsical
disregard of certain rules; impair her performance of official functions as well
as that of the House; and prevent public respondent from completing its
report within the deadline.
Public respondent counters that there is no requirement in the Constitution
that an impeachment complaint must charge only one offense, and the
nature of impeachable offenses precludes the application of the above-said
Rule on Criminal Procedure since the broad terms cannot be defined with the
same precision required in defining crimes. It adds that the determination of
the grounds for impeachment is an exercise of political judgment, which
issue respondent-intervenor also considers as non-justiciable, and to which
the Baraquel group adds that impeachment is a political process and not a
criminal prosecution, during which criminal prosecution stage the complaint
or information referred thereto and cited by petitioner, unlike an impeachment
complaint, must already be in the name of the People of the Philippines.
The Baraquel group deems that there are provisions92 outside the Rules on
Criminal Procedure that are more relevant to the issue. Both the Baraquel
and Reyes groups point out that even if Sec. 13 of Rule 110 is made to
apply, petitioners case falls under the exception since impeachment
prescribes a single punishment removal from office and disqualification to
hold any public office even for various offenses. Both groups also observe
that petitioner concededly and admittedly was not keen on pursuing this
issue during the oral arguments.
Petitioners claim deserves scant consideration.
Without going into the effectiveness of the suppletory application of the Rules
on Criminal Procedure in carrying out the relevant constitutional provisions,
which prerogative the Constitution vests on Congress, and without delving
into the practicability of the application of the one offense per complaint rule,
the initial determination of which must be made by the House93 which has yet
to pass upon the question, the Court finds that petitioners invocation of that
particular rule of Criminal Procedure does not lie. Suffice it to state that the
Constitution allows the indictment for multiple impeachment offenses, with
each charge representing an article of impeachment, assembled in one set
known as the "Articles of Impeachment."94 It, therefore, follows that an
impeachment complaint need not allege only one impeachable offense.
The second procedural matter deals with the rule on consolidation. In
rejecting a consolidation, petitioner maintains that the Constitution allows
only one impeachment complaint against her within one year.
Records show that public respondent disavowed any immediate need to
consolidate. Its chairperson Rep. Tupas stated that "[c]onsolidation depends
on the Committee whether to consolidate[; c]onsolidation may come today or
may come later on after determination of the sufficiency in form and
substance," and that "for purposes of consolidation, the Committee will
decide when is the time to consolidate[, a]nd if, indeed, we need to
consolidate."95 Petitioners petition, in fact, initially describes the
consolidation as merely "contemplated."96
Since public respondent, whether motu proprio or upon motion, did not yet
order a consolidation, the Court will not venture to make a determination on
this matter, as it would be premature, conjectural or anticipatory. 97
Even if the Court assumes petitioners change of stance that the two
impeachment complaints were deemed consolidated,98 her claim that
consolidation is a legal anomaly fails. Petitioners theory obviously springs
from her "proceeding = complaint" equation which the Court already brushed
aside.
WHEREFORE, the petition is DISMISSED. The assailed Resolutions of
September 1, 2010 and September 7, 2010 of public respondent, the House
of Representatives Committee on Justice, are NOT UNCONSTITUTIONAL.
The Status Quo Ante Order issued by the Court on September 14, 2010 is
LIFTED.
SO ORDERED.
G.R. No. 141309 December 23, 2008
LIWAYWAY VINZONS-CHATO, petitioner,
vs.
FORTUNE TOBACCO CORPORATION, respondent.
RESOLUTION
NACHURA, J.:
It is a fundamental principle in the law of public officers that a duty owing to
the public in general cannot give rise to a liability in favor of particular
individuals.1 The failure to perform a public duty can constitute an individual
wrong only when a person can show that, in the public duty, a duty to himself
as an individual is also involved, and that he has suffered a special and
peculiar injury by reason of its improper performance or non-performance.2
By this token, the Court reconsiders its June 19, 2007 Decision3 in this case.
As culled from the said decision, the facts, in brief, are as follows:
On June 10, 1993, the legislature enacted Republic Act No. 7654
(RA 7654), which took effect on July 3, 1993. Prior to its effectivity,
cigarette brands 'Champion," "Hope," and "More" were considered
local brands subjected to an ad valorem tax at the rate of 20-45%.
However, on July 1, 1993, or two days before RA 7654 took effect,
petitioner issued RMC 37-93 reclassifying "Champion," "Hope," and
"More" as locally manufactured cigarettes bearing a foreign brand
subject to the 55% ad valorem tax. RMC 37-93 in effect subjected
"Hope," "More," and "Champion" cigarettes to the provisions of RA
7654, specifically, to Sec. 142, (c)(1) on locally manufactured
cigarettes which are currently classified and taxed at 55%, and which
imposes an ad valorem tax of "55% provided that the minimum tax
shall not be less than Five Pesos (P5.00) per pack."
On July 2, 1993, at about 5:50 p.m., BIR Deputy Commissioner
Victor A. Deoferio, Jr. sent via telefax a copy of RMC 37-93 to
Fortune Tobacco but it was addressed to no one in particular. On
July 15, 1993, Fortune Tobacco received, by ordinary mail, a
certified xerox copy of RMC 37-93. On July 20, 1993, respondent
filed a motion for reconsideration requesting the recall of RMC 37-93,
but was denied in a letter dated July 30, 1993. The same letter
assessed respondent for ad valorem tax deficiency amounting to
P9,598,334.00 (computed on the basis of RMC 37-93) and
demanded payment within 10 days from receipt thereof. On August
3, 1993, respondent filed a petition for review with the Court of Tax
Appeals (CTA), which on September 30, 1993, issued an injunction
enjoining the implementation of RMC 37-93. In its decision dated
August 10, 1994, the CTA ruled that RMC 37-93 is defective, invalid,
and unenforceable and further enjoined petitioner from collecting the
deficiency tax assessment issued pursuant to RMC No. 37-93. This
ruling was affirmed by the Court of Appeals, and finally by this Court
in Commissioner of Internal Revenue v. Court of Appeals. It was
held, among others, that RMC 37-93, has fallen short of the
requirements for a valid administrative issuance.
On April 10, 1997, respondent filed before the RTC a complaint for
damages against petitioner in her private capacity. Respondent
contended that the latter should be held liable for damages under
Article 32 of the Civil Code considering that the issuance of RMC 37-
93 violated its constitutional right against deprivation of property
without due process of law and the right to equal protection of the
laws.
Petitioner filed a motion to dismiss contending that: (1) respondent
has no cause of action against her because she issued RMC 37-93
in the performance of her official function and within the scope of her
authority. She claimed that she acted merely as an agent of the
Republic and therefore the latter is the one responsible for her acts;
(2) the complaint states no cause of action for lack of allegation of
malice or bad faith; and (3) the certification against forum shopping
was signed by respondent's counsel in violation of the rule that it is
the plaintiff or the principal party who should sign the same.
On September 29, 1997, the RTC denied petitioner's motion to
dismiss holding that to rule on the allegations of petitioner would be
to prematurely decide the merits of the case without allowing the
parties to present evidence. It further held that the defect in the
certification against forum shopping was cured by respondent's
submission of the corporate secretary's certificate authorizing its
counsel to execute the certification against forum shopping. x x x x
xxxx
The case was elevated to the Court of Appeals via a petition for
certiorari under Rule 65. However, same was dismissed on the
ground that under Article 32 of the Civil Code, liability may arise even
if the defendant did not act with malice or bad faith. The appellate
court ratiocinated that Section 38, Book I of the Administrative Code
is the general law on the civil liability of public officers while Article 32
 of the Civil Code is the special law that governs the instant case.
Consequently, malice or bad faith need not be alleged in the
complaint for damages. It also sustained the ruling of the RTC that
the defect of the certification against forum shopping was cured by
the submission of the corporate secretary's certificate giving authority
to its counsel to execute the same.4 [Citations and underscoring
omitted.]
In the aforesaid June 19, 2007 Decision, we affirmed the disposition of the
Court of Appeals (CA) and directed the trial court to continue with the
proceedings in Civil Case No. 97-341-MK.5
Petitioner, on July 20, 2007, subsequently moved for the reconsideration of
the said decision.6 After respondent filed its comment, the Court, in its April
14, 2008 Resolution,7 denied with finality petitioner's motion for
reconsideration.
Undaunted, petitioner filed, on April 29, 2008 her Motion to Refer [the case]
to the Honorable Court En Banc.8 She contends that the petition raises a
legal question that is novel and is of paramount importance. The earlier
decision rendered by the Court will send a chilling effect to public officers,
and will adversely affect the performance of duties of superior public officers
in departments or agencies with rule-making and quasi-judicial powers. With
the said decision, the Commissioner of Internal Revenue will have reason to
hesitate or refrain from performing his/her official duties despite the due
process safeguards in Section 228 of the National Internal Revenue Code. 9
Petitioner hence moves for the reconsideration of the June 19, 2007
Decision.10
In its June 25, 2008 Resolution,11
the Court referred the case to the En Banc.
Respondent consequently moved for the reconsideration of this resolution.
We now resolve both motions.
There are two kinds of duties exercised by public officers: the "duty owing to
the public collectively" (the body politic), and the "duty owing to particular
individuals, thus:
1. Of Duties to the Public. - The first of these classes embraces
those officers whose duty is owing primarily to the public collectively
--- to the body politic --- and not to any particular individual; who act
for the public at large, and who are ordinarily paid out of the public
treasury.
The officers whose duties fall wholly or partially within this class are
numerous and the distinction will be readily recognized. Thus, the
governor owes a duty to the public to see that the laws are properly
executed, that fit and competent officials are appointed by him, that
unworthy and ill-considered acts of the legislature do not receive his
approval, but these, and many others of a like nature, are duties
which he owes to the public at large and no one individual could
single himself out and assert that they were duties owing to him
alone. So, members of the legislature owe a duty to the public to
pass only wise and proper laws, but no one person could pretend
that the duty was owing to himself rather than to another. Highway
commissioners owe a duty that they will be governed only by
considerations of the public good in deciding upon the opening or
closing of highways, but it is not a duty to any particular individual of
the community.
These illustrations might be greatly extended, but it is believed that
they are sufficient to define the general doctrine.
2. Of Duties to Individuals. - The second class above referred to
includes those who, while they owe to the public the general duty of
a proper administration of their respective offices, yet become, by
reason of their employment by a particular individual to do some act
for him in an official capacity, under a special and particular
obligation to him as an individual. They serve individuals chiefly and
usually receive their compensation from fees paid by each individual
who employs them.
A sheriff or constable in serving civil process for a private suitor, a
recorder of deeds in recording the deed or mortgage of an individual,
a clerk of court in entering up a private judgment, a notary public in
protesting negotiable paper, an inspector of elections in passing
upon the qualifications of an elector, each owes a general duty of
official good conduct to the public, but he is also under a special duty
to the particular individual concerned which gives the latter a peculiar
interest in his due performance.12
In determining whether a public officer is liable for an improper performance
or non-performance of a duty, it must first be determined which of the two
classes of duties is involved. For, indeed, as the eminent Floyd R. Mechem
instructs, "[t]he liability of a public officer to an individual or the public is
based upon and is co-extensive with his duty to the individual or the public. If
to the one or the other he owes no duty, to that one he can incur no
liability."13
Stated differently, when what is involved is a "duty owing to the public in
general", an individual cannot have a cause of action for damages against
the public officer, even though he may have been injured by the action or
inaction of the officer. In such a case, there is damage to the individual but
no wrong to him. In performing or failing to perform a public duty, the officer
has touched his interest to his prejudice; but the officer owes no duty to him
as an individual.14 The remedy in this case is not judicial but political.15
The exception to this rule occurs when the complaining individual suffers a
particular or special injury on account of the public officer's improper
performance or non-performance of his public duty. An individual can never
be suffered to sue for an injury which, technically, is one to the public only;
he must show a wrong which he specially suffers, and damage alone does
not constitute a wrong.16 A contrary precept (that an individual, in the
absence of a special and peculiar injury, can still institute an action against a
public officer on account of an improper performance or non-performance of
a duty owing to the public generally) will lead to a deluge of suits, for if one
man might have an action, all men might have the like-the complaining
individual has no better right than anybody else.17 If such were the case, no
one will serve a public office. Thus, the rule restated is that an individual
cannot have a particular action against a public officer without a particular
injury, or a particular right, which are the grounds upon which all actions are
founded.18
Juxtaposed with Article 3219 of the Civil Code, the principle may now
translate into the rule that an individual can hold a public officer personally
liable for damages on account of an act or omission that violates a
constitutional right only if it results in a particular wrong or injury to the
former. This is consistent with this Court's pronouncement in its June 19,
2007 Decision (subject of petitioner's motion for reconsideration) that Article
32, in fact, allows a damage suit for "tort for impairment of rights and
liberties."20
It may be recalled that in tort law, for a plaintiff to maintain an action for
damages for the injuries of which he complains, he must establish that such
injuries resulted from a breach of duty which the defendant owed the plaintiff,
meaning a concurrence of injury to the plaintiff and legal responsibility by the
person causing it. Indeed, central to an award of tort damages is the premise
that an individual was injured in contemplation of law.21 Thus, in Lim v. Ponce
de Leon,22 we granted the petitioner's claim for damages because he, in fact,
suffered the loss of his motor launch due to the illegal seizure thereof. In
Cojuangco, Jr. v. Court of Appeals,23 we upheld the right of petitioner to the
recovery of damages as there was an injury sustained by him on account of
the illegal withholding of his horserace prize winnings.
In the instant case, what is involved is a public officer's duty owing to the
public in general. The petitioner, as the then Commissioner of the Bureau of
Internal Revenue, is being taken to task for Revenue Memorandum Circular
(RMC) No. 37-93 which she issued without the requisite notice, hearing and
publication, and which, in Commissioner of Internal Revenue v. Court of
Appeals,24 we declared as having "fallen short of a valid and effective
administrative issuance."25 A public officer, such as the petitioner, vested
with quasi-legislative or rule-making power, owes a duty to the public to
promulgate rules which are compliant with the requirements of valid
administrative regulations. But it is a duty owed not to the respondent alone,
but to the entire body politic who would be affected, directly or indirectly, by
the administrative rule.
Furthermore, as discussed above, to have a cause of action for damages
against the petitioner, respondent must allege that it suffered a particular or
special injury on account of the non-performance by petitioner of the public
duty. A careful reading of the complaint filed with the trial court reveals that
no particular injury is alleged to have been sustained by the respondent. The
phrase "financial and business difficulties"26 mentioned in the complaint is a
vague notion, ambiguous in concept, and cannot translate into a "particular
injury." In contrast, the facts of the case eloquently demonstrate that the
petitioner took nothing from the respondent, as the latter did not pay a single
centavo on the tax assessment levied by the former by virtue of RMC 37-93.
With no "particular injury" alleged in the complaint, there is, therefore, no
delict or wrongful act or omission attributable to the petitioner that would
violate the primary rights of the respondent. Without such delict or tortious
act or omission, the complaint then fails to state a cause of action, because a
cause of action is the act or omission by which a party violates a right of
another.27
A cause of action exists if the following elements are present: (1) a right in
favor of the plaintiff by whatever means and under whatever law it arises or is
created; (2) an obligation on the part of the named defendant to respect or
not to violate such right; and (3) an act or omission on the part of such
defendant violative of the right of the plaintiff or constituting a breach of the
obligation of defendant to plaintiff for which the latter may maintain an action
for recovery of damages.28
The remedy of a party whenever the complaint does not allege a cause of
action is to set up this defense in a motion to dismiss, or in the answer. A
motion to dismiss based on the failure to state a cause of action in the
complaint hypothetically admits the truth of the facts alleged therein.
However, the hypothetical admission is limited to the "relevant and material
facts well-pleaded in the complaint and inferences deducible therefrom. The
admission does not extend to conclusions or interpretations of law; nor does
it cover allegations of fact the falsity of which is subject to judicial notice." 29
The complaint may also be dismissed for lack of cause of action if it is
obvious from the complaint and its annexes that the plaintiff is not entitled to
any relief.30
The June 19, 2007 Decision and the dissent herein reiterates that under
Article 32 of the Civil Code, the liability of the public officer may accrue even
if he/she acted in good faith, as long as there is a violation of constitutional
rights, citing Cojuangco, Jr. v. Court of Appeals,31 where we said:
Under the aforecited article, it is not necessary that the public officer acted
with malice or bad faith. To be liable, it is enough that there was a violation of
the constitutional rights of petitioners, even on the pretext of justifiable
motives or good faith in the performance of duties.32
The complaint in this case does not impute bad faith on the petitioner.
Without any allegation of bad faith, the cause of action in the respondent's
complaint (specifically, paragraph 2.02 thereof) for damages under Article 32
of the Civil Code would be premised on the findings of this Court in
Commissioner of Internal Revenue v. Court of Appeals (CIR v. CA),33 where
we ruled that RMC No. 37-93, issued by petitioner in her capacity as
Commissioner of Internal Revenue, had "fallen short of a valid and effective
administrative issuance." This is a logical inference. Without the decision in
CIR v. CA, the bare allegations in the complaint that respondent's rights to
due process of law and to equal protection of the laws were violated by the
petitioner's administrative issuance would be conclusions of law, hence not
hypothetically admitted by petitioner in her motion to dismiss.
But in CIR v. CA, this Court did not declare RMC 37-93 unconstitutional;
certainly not from either the due process of law or equal protection of the
laws perspective. On due process, the majority, after determining that RMC
37-93 was a legislative rule, cited an earlier Revenue Memorandum Circular
(RMC No. 10-86) requiring prior notice before RMC's could become
"operative." However, this Court did not make an express finding of violation
of the right to due process of law. On the aspect of equal protection, CIR v.
CA said: "Not insignificantly, RMC 37-93 might have likewise infringed on
uniformity of taxation;" a statement that does not amount to a positive
indictment of petitioner for violation of respondent's constitutional right. Even
if one were to ascribe a constitutional infringement by RMC 37-93 on the
non-uniformity of tax provisions, the nature of the constitutional transgression
falls under Section 28, Article VI-not Section 1, Article III-of the Constitution.
This Court's own summation in CIR v. CA: "All taken, the Court is convinced
that the hastily promulgated RMC 37-93 has fallen short of a valid and
effective administrative issuance," does not lend itself to an interpretation
that the RMC is unconstitutional. Thus, the complaint's reliance on CIR v.
CA-which is cited in, and a copy of which is annexed to, the complaint-as
suggestive of a violation of due process and equal protection, must fail.
Accordingly, from the foregoing discussion, it is obvious that paragraph 2.02
of respondent's complaint loses the needed crutch to sustain a valid cause of
action against the petitioner, for what is left of the paragraph is merely the
allegation that only respondent's "Champion", "Hope" and "More" cigarettes
were reclassified.
If we divest the complaint of its reliance on CIR v. CA, what remains of
respondent's cause of action for violation of constitutional rights would be
paragraph 2.01, which reads:
2.01. On or about July 1, 1993, defendant issued Revenue
Memorandum Circular No. 37-93 (hereinafter referred to as RMC No.
37-93) reclassifying specifically "Champion", "Hope" and "More" as
locally manufactured cigarettes bearing a foreign brand. A copy of
the aforesaid circular is attached hereto and made an integral part
hereof as ANNEX "A". The issuance of a circular and its
implementation resulted in the "deprivation of property" of plaintiff.
They were done without due process of law and in violation of the
right of plaintiff to the equal protection of the laws. (Italics supplied.)
But, as intimated above, the bare allegations, "done without due process of
law" and "in violation of the right of plaintiff to the equal protection of the
laws" are conclusions of law. They are not hypothetically admitted in
petitioner's motion to dismiss and, for purposes of the motion to dismiss, are
not deemed as facts.
In Fluor Daniel, Inc. Philippines v. EB. Villarosa & Partners Co., Ltd.,34 this
Court declared that the test of sufficiency of facts alleged in the complaint as
constituting a cause of action is whether or not, admitting the facts alleged,
the court could render a valid verdict in accordance with the prayer of the
complaint. In the instant case, since what remains of the complaint which is
hypothetically admitted, is only the allegation on the reclassification of
respondent's cigarettes, there will not be enough facts for the court to render
a valid judgment according to the prayer in the complaint.
Furthermore, in an action for damages under Article 32 of the Civil Code
premised on violation of due process, it may be necessary to harmonize the
Civil Code provision with subsequent legislative enactments, particularly
those related to taxation and tax collection. Judicial notice may be taken of
the provisions of the National Internal Revenue Code, as amended, and of
the law creating the Court of Tax Appeals. Both statutes provide ample
remedies to aggrieved taxpayers; remedies which, in fact, were availed of by
the respondent-without even having to pay the assessment under protest-as
recounted by this Court in CIR v. CA, viz.:
In a letter, dated 19 July 1993, addressed to the appellate division of
the BIR, Fortune Tobacco requested for a review, reconsideration
and recall of RMC 37-93. The request was denied on 29 July 1993.
The following day, or on 30 July 1993, the CIR assessed Fortune
Tobacco for ad valorem tax deficiency amounting to P9,598,334.00.
On 03 August 1993, Fortune Tobacco filed a petition for review with
the CTA.35
The availability of the remedies against the assailed administrative action,
the opportunity to avail of the same, and actual recourse to these remedies,
contradict the respondent's claim of due process infringement.
At this point, a brief examination of relevant American jurisprudence may be
instructive.
42 U.S. Code 1983, a provision incorporated into the Civil Rights Act of 1871,
presents a parallel to our own Article 32 of the Civil Code, as it states:
Every person who, under color of any statute, ordinance, regulation,
custom, usage, or any State or Territory, subjects, or causes to be
subjected, any citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges or
immunities secured by the Constitution and laws, shall be liable to
the party injured in an action at law, suit in equity or other proper
proceeding for redress.
This provision has been employed as the basis of tort suits by many
petitioners intending to win liability cases against government officials when
they violate the constitutional rights of citizens.
Webster Bivens v. Six Unknown Named Agents of Federal Bureau of
Investigation,36 has emerged as the leading case on the victim's entitlement
to recover money damages for any injuries suffered as a result of flagrant
and unconstitutional abuses of administrative power. In this case, federal
narcotics officers broke into Bivens' home at 6:30 a.m. without a search
warrant and in the absence of probable cause. The agents handcuffed
Bivens, searched his premises, employed excessive force, threatened to
arrest his family, subjected him to a visual strip search in the federal court
house, fingerprinted, photographed, interrogated and booked him. When
Bivens was brought before a United States Commissioner, however, charges
against him were dismissed. On the issue of whether violation of the Fourth
Amendment "by a federal agent acting under color of authority gives rise to a
cause of action for damages consequent upon his constitutional conduct,"
the U.S. Supreme Court held that Bivens is entitled to recover damages for
injuries he suffered as a result of the agents' violation of the Fourth
Amendment.
A number of subsequent decisions have upheld Bivens. For instance, in
Scheuer v. Rhodes,37 a liability suit for money damages was allowed against
Ohio Governor James Rhodes by petitioners who represented three students
who had been killed by Ohio National Guard troops at Kent State University
as they protested against U.S. involvement in Vietnam. In Wood v.
Strickland,38 local school board members were sued by high school students
who argued that they had been deprived of constitutional due process rights
when they were expelled from school for having spiked a punch bowl at a
school function without the benefit of a full hearing. In Butz v. Economou,39
Economou, whose registration privilege as a commodities futures trader was
suspended, without prior warning, by Secretary of Agriculture Earl Butz, sued
on a Bivens action, alleging that the suspension was aimed at "chilling" his
freedom of expression right under the First Amendment. A number of other
cases40 with virtually the same conclusion followed.
However, it is extremely dubious whether a Bivens action against
government tax officials and employees may prosper, if we consider the
pronouncement of the U.S. Supreme Court in Schweiker v. Chilicky,41 that a
Bivens remedy will not be allowed when other "meaningful safeguards or
remedies for the rights of persons situated as (is the plaintiff)" are available.
It has also been held that a Bivens action is not appropriate in the civil
service system42 or in the military justice system.43
In Frank Vennes v. An Unknown Number of Unidentified Agents of the United
States of America,44 petitioner Vennes instituted a Bivens action against
agents of the Internal Revenue Service (IRS) who alleged that he (Vennes)
owed $250,000 in tax liability, instituted a jeopardy assessment, confiscated
Vennes' business, forced a total asset sale, and put Vennes out of business,
when in fact he owed not a dime. The U.S. Court of Appeals, Eighth Circuit,
ruled:
The district court dismissed these claims on the ground that a
taxpayer's remedies under the Internal Revenue Code preclude such
a Bivens action. Vennes cites to us no contrary authority, and we
have found none. Though the Supreme Court has not addressed this
 precise question, it has strongly suggested that the district court
correctly applied Bivens:
When the design of a Government program suggests that
Congress has provided what it considers adequate remedial
mechanisms for constitutional violations that may occur in
the course of its administration, we have not created
additional Bivens remedies.
xxxx
Congress has provided specific and meaningful remedies for
taxpayers who challenge overzealous tax assessment and collection
activities. A taxpayer may challenge a jeopardy assessment both
administratively and judicially, and may sue the government for a tax
refund, and have authorized taxpayer actions against the United
States to recover limited damages resulting from specific types of
misconduct by IRS employees. These carefully crafted legislative
remedies confirm that, in the politically sensitive realm of taxation,
Congress's refusal to permit unrestricted damage action by
taxpayers has not been inadvertent. Thus, the district court correctly
dismissed Vennes's Bivens claims against IRS agents for their tax
assessment and collection activities.
In still another Bivens action, instituted by a taxpayer against IRS employees
for alleged violation of due process rights concerning a tax dispute, the U.S.
District Court of Minnesota said:
Section 227. Satisfaction of Judgment Recovered Against any
Internal Revenue Officer. - When an action is brought against any
Internal Revenue officer to recover damages by reason of any act
done in the performance of official duty, and the Commissioner is
notified of such action in time to make defense against the same,
through the Solicitor General, any judgment, damages or costs
recovered in such action shall be satisfied by the Commissioner,
upon approval of the Secretary of Finance, or if the same be paid by
the person sued shall be repaid or reimbursed to him.
No such judgment, damages or costs shall be paid or reimbursed in
behalf of a person who has acted negligently or in bad faith, or with
willful oppression.
Because the respondent's complaint does not impute negligence or bad faith
to the petitioner, any money judgment by the trial court against her will have
to be assumed by the Republic of the Philippines. As such, the complaint is
in the nature of a suit against the State.46
WHEREFORE, premises considered, we GRANT petitioner's motion for
reconsideration of the June 19, 2007 Decision and DENY respondent's
motion for reconsideration of the June 25, 2008 Resolution. Civil Case No.
CV-97-341-MK, pending with the Regional Trial Court of Marikina City, is
DISMISSED.
SO ORDERED.

In addition, the (Tax) Code provides taxpayers with remedies, judicial

and otherwise, for correcting and redressing wrongful acts taken by
IRS employees in connection with any collection activities. Although
these provisions do not provide taxpayers with an all-encompassing
remedy for wrongful acts of IRS personnel, the rights established
under the Code illustrate that it provides all sorts of rights against the
overzealous officialdom, including, most fundamentally, the right to
sue the government for a refund if forced to overpay taxes, and it
would make the collection of taxes chaotic if a taxpayer could bypass
the remedies provided by Congress simply by bringing a damage
suit against IRS employees.45

American jurisprudence obviously validates the contention of the petitioner.

Finally, we invite attention to Section 227, Republic Act No. 8424 (Tax
Reform Act of 1997), which provides:
G.R. No. 147227 November 19, 2004
MARIA REMEDIOS ARGANA, DONATA ALMENDRALA VDA. DE
ARGANA, LUIS ARGANA, JR., PEREGRINO ARGANA, ESTATE OF
GELACIO ARGANA, EUFROCINIO NOFUENTE, AMPARO ARGANA
NOFUENTE, JUANITO ROGELIO, MILAGROS ARGANA ROGELIO,
MARIA FELICIDAD ARGANA, MARIA DOROTEA ARGANA, REFEDOR
SOUTH GOLD PROPERTY MANAGEMENT & DEVELOPMENT
CORPORATION, petitioners,
vs.
REPUBLIC OF THE PHILIPPINES, respondent.
DECISION
TINGA, J.:
Before the Court is a Petition for Certiorari assailing the Resolution dated
April 11, 2000 and the Order dated February 22, 2001 of the Sandiganbayan,
Third Division, in Civil Case No. 0026.1
On July 29, 1987, respondent Republic of the Philippines filed with the
Sandiganbayan a Petition for Forfeiture of alleged ill-gotten assets and
properties of the late Maximino A. Argana, who served as Mayor of the
Municipality of Muntinlupa2 from 1964 to 1967 and from 1972 until his death
in 1985.
On October 28, 1998, the Sandiganbayan remanded the case to the
Presidential Commission on Good Government (PCGG) for the conduct of an
inquiry. In 1990, the case was reactivated in the Sandiganbayan. Petitioners
Maria Remedios Argana, Donata Almendrala Vda. De Argana, Luis Argana,
Jr., Peregrino Argana, Estate of Gelacio Argana, Eufrocinio Nofuente,
Amparo Argana Nofuente, Juanito Rogelio, Milagros Argana Rogelio, Maria
Felicidad Argana, Maria Dorotea Argana, and Refedor South Gold Property
Management & Development Corporation filed a series of motions, including
a Motion to Dismiss on the ground of the lack of authority of the PCGG to
institute the case on behalf of respondent. This issue eventually reached this
Court and was decided in favor of respondent on September 29, 1994.3
Petitioners, in their Answer, denied that the properties sought to be forfeited
by respondent were unlawfully acquired by the deceased Mayor and/or by
petitioners. Still, to avoid a protracted litigation, petitioners exerted efforts to
settle the case amicably with respondent through the PCGG.
After a series of motions were again filed by petitioners, the Sandiganbayan
finally set the case for pre-trial on November 26, 1997, but the pre-trial was
reset several times in view of the manifestation of the parties that they were
in the process of negotiating a compromise.
On August 7, 1997, petitioners' offer of compromise was accepted by the
PCGG in its Resolution No. 97-180-A.4
Thereafter, the PCGG conducted an evaluation of the properties offered for
settlement by petitioners. In a Memorandum dated August 18, 1997, Mauro
J. Estrada, Director of the PCGG Research and Development Program,
recommended the inclusion of another tract of land5 belonging to petitioners
among the properties which would be subject of the compromise.
On September 18, 1997, respondent, represented by PCGG Commissioners
Reynaldo S. Guiao and Herminio A. Mendoza entered into a Compromise
Agreement with petitioners, represented by petitioner Maria Felicidad
Argana. Petitioners conveyed, ceded and released in favor of respondent a
total of 361.9203 hectares of agricultural land in Pangil and Famy, Laguna, or
75.12% of the properties subject of litigation, in consideration of the dismissal
or withdrawal of all pending civil, criminal and administrative cases filed,
litigated or investigated by respondent against them. The remainder was
distributed as follows:
To be retained by the late Mayor Argana's heirs 9.88% 47.7878
Owned by the Mayor's Brothers and Sisters 5.53% 26.631
Foreclosed by Los Baos Rural Bank 1.24% 5.985
Owned by Other Persons 8.23% 39.6486
24.88% 120.05392
In a letter dated October 7, 1997,7 the PCGG informed the Office of the
Solicitor General (OSG) of the signing of the Compromise Agreement and
requested the OSG to file the appropriate motion for approval thereof with
the Sandiganbayan.
Subsequently, the OSG requested for clarification from the PCGG if the
compromise agreement included all the sequestered assets of petitioners
subject of litigation. In response to the request, PCGG informed the OSG in a
letter dated February 4, 19988 that the properties mentioned in the
Compromise Agreement comprise all the sequestered assets subject of
litigation, and reiterated that it entered into a compromise agreement with
petitioners because it believed that the evidence might not be sufficient to
warrant continuing the prosecution of Civil Case No. 0026 and that it is to the
best interest of the government to accept the offer of petitioners.9
On May 27, 1998, then President of the Republic of the Philippines Fidel V.
Ramos approved the Compromise Agreement between petitioners and
respondent.10
On June 4, 1998,11 the OSG filed with the Sandiganbayan a Motion to
Approve Compromise Agreement. Petitioners expressed their conformity to
the motion on June 15, 1998.
After conducting hearings on the motion, the Sandiganbayan promulgated its
Decision on July 31, 1998 approving the Compromise Agreement and
rendering judgment in accordance with the terms thereof.12
However, on October 5, 1998, respondent, through the OSG and the PCGG,
filed with the Sandiganbayan a Motion to Rescind Compromise Agreement
and to Set Aside Judgment by Compromise (Motion to Rescind). Respondent
prayed for the rescission of the Compromise Agreement or reformation
thereof after a renegotiation with petitioners. Respondent contended that the
partition of the properties in the Compromise Agreement was grossly
disadvantageous to the government and that there was fraud and insidious
misrepresentation by petitioners in the distribution and partition of properties,
to the damage and prejudice of the government. According to respondent,
there was fraud and insidious misrepresentation because petitioners
proposed to divide the propertieswith 75% accruing to the government and
the remaining 25% going to petitioners and their other creditorsbased on
the total land area of the properties instead of on their value. As a result, the
government obtained only Three Million Six Hundred Twenty Thousand
Pesos (P3,620,000.00) worth of land, while petitioners received almost Four
Billion Pesos (P4,000,000,000.00) worth.
Petitioners filed an Answer to the Motion to Rescind and contended that the
July 31, 1998 Decision of the Sandiganbayan could no longer be annulled
because it had already become final and executory; that respondent's
counsel had no authority to file the motion; and that the motion was defective
because it did not include a Certification against Forum-Shopping. They also
argued that there was no agreement to divide the properties by a 75% to
25% ratio in favor of the government. What they proposed to cede to the
government by way of compromise were their properties in Pangil covered by
Transfer Certificate of Title (TCT) Nos. T-4044 and T-4009 and those in
Famy, Laguna covered by TCT Nos. T-3813 to T-3817 and T-4104, 4106
and 4108, not a specific percentage of the properties subject of litigation.13
In its Resolution dated September 22, 1999, the Sandiganbayan treated the
Motion to Rescind as a petition for relief from judgment under Rule 38 of the
1997 Rules on Civil Procedure and set the motion for hearing.
On April 11, 2000, the Sandiganbayan issued a Resolution granting
respondent's motion to rescind and setting aside the Decision dated July 31,
1998. The Sandiganbayan held that the Motion to Rescind was filed on time
on October 5, 1998, the working day immediately following October 4, 1998,
which was a Sunday and the 60th day after respondent received the July 31,
1998 Decision on August 5, 1998. It also ruled that the presumption that the
OSG had authority to file the Motion to Rescind was not overcome by
petitioners. Under Republic Act No. 1379,14 the filing and prosecution of
cases for forfeiture of unlawfully acquired property is a function of the OSG.
Petitioners failed to show proof that pleadings or motions filed by lawyers of
the government or the PCGG must first be approved by the PCGG En Banc
and by the President of the Republic. The Sandiganbayan likewise held that
respondent was not required to file a certification against forum-shopping
because the motion to rescind was not an initiatory pleading.15
With respect to the issue of fraud, it held that there was extrinsic fraud in the
execution of the Compromise Agreement. The Sandiganbayan stated:
The values were deliberately omitted to make it appear that the
Compromise Agreement adheres to the 75%-25% ratio broadly
adopted by the PCGG in compromising cases of ill-gotten wealth. It
was this 75%-25% mode of compromise, with the greater share of
75% going to the government that misled the Court to believe, as We
did believe, that the Compromise Agreement was fair, reasonable
and advantageous to the Government.
What was projected to be a 75%-25% ratio was in reality a
00.15%-99.85% ratio, with 99.85% going to the Arganas. This is
unconscionable and immoral. And since it results in a transaction
grossly disadvantageous and immoral to the government, it is
against the law as being violative of Section 3(g) of Republic Act
3019.
In the instant case, fraud of an extrinsic character exists because the
representatives of plaintiff Republic in the PCGG connived with
 defendants in hiding the assessed or market values of the properties
involved, so as to make it appear that the Compromise Agreement
adhered to the 75%-25% ratio adopted by the PCGG in entering into
compromise of cases involving the recovery of ill-gotten wealth.
Through their infidelity, those in the PCGG who handled or were
closely involved with the case during the last days of the previous
administration fraudulently gave the Compromise Agreement a
semblance of fairness and official acceptability. They sold plaintiff
Republic down the river by entering into an agreement grossly
disadvantageous to the government. For while plaintiff Republic got
00.15% (00.15074) of the estimated value of all the properties
involved in this case, defendants almost ran away with 99.85%
(99.84526) of their value. This is patently unfair. It is no compromise
but a virtual sell-out. It could not have been pulled off without the
connivance or collusion of those responsible for the case in the
PCGG. Instead of protecting the interest of the government, they
connived at its defeatalmost.16
Petitioners filed a Motion for Reconsideration dated May 9, 2000 and a
Supplement to said motion dated May 30, 2000. Petitioners also filed an
Urgent Motion for Voluntary Inhibition dated May 18, 2000 praying that the
members of the Third Division of the Sandiganbayan voluntarily inhibit
themselves from hearing and resolving the petitioners' pending motions.
On February 22, 2001, the Sandiganbayan issued two Orders, one denying
petitioners' motion for reconsideration,17 and the other, denying the motion
for voluntary inhibition.18
Hence, petitioners filed the present petition on April 27, 2001.
Respondent filed its Comment on October 22, 2001.
On November 12, 2001, the Court issued a Resolution giving due course to
the petition and requiring the parties to submit their respective
memoranda.19
Respondent filed its Memorandum on January 29, 2002. Petitioners filed
theirs on February 26, 2002. In their respective memoranda, the parties
reiterated the arguments in their earlier pleadings.
Specifically, petitioners raise the following arguments:
(A) The Sandiganbayan (Third Division) denied Petitioners their right
to substantive and procedural due process when it refused to
voluntarily inhibit itself from further hearing the instant case.
(B) The PCGG lawyers had no authority to ask for the rescission of
the subject Compromise Agreement without the consent of the
PCGG En Banc and the President of the Republic of the Philippines.
(C) The Motion to Rescind, which was treated by the Sandiganbayan
(Third Division) as a Petition for Relief under Rule 38 of the Rules of
Court, is fatally defective because
1. It was not filed by a party to the case, i.e., it was filed by
counsel without the client's authority.
2. It was filed out of time.
3. It was filed sans any supporting Affidavit of Merit.
4. It lacked the required Certification on Non-Forum
Shopping.
(D) There is no factual or legal basis for the finding of fraud by the
Sandiganbayan (Third Division).
(E) Upon approval of the Compromise Agreement, the
Sandiganbayan (Third Division) lost jurisdiction over the case,
including the authority to rescind said Compromise Agreement and
to set aside the judgment based thereon.
(F) The Sandiganbayan (Third Division) lacked authority to alter a
contract by construction or to make a new contract for the parties.
(G) Since the Compromise Agreement had already been
implemented, rescission cannot be availed of.20
Petitioners contend that the members of the Third Division of the
Sandiganbayan should have inhibited themselves from resolving petitioners'
motion for reconsideration because from the tenor of the April 11, 2000 Order
of the court granting respondent's motion to rescind, it was evident that the
Sandiganbayan had already prejudged the properties subject of litigation as
having been unlawfully acquired.21
Petitioners likewise assert that the property value of a property offered for the
amicable settlement of a case is not always material in determining the
validity of a compromise agreement. They point out that what impelled the
PCGG to enter into a compromise agreement with them was PCGG's
perception that its evidence against petitioners was weak and might not be
sufficient to justify maintaining the case against them.22
In addition, petitioners insist that the Motion to Rescind which was treated by
the Sandiganbayan as a petition for relief from judgment under Rule 38 is
fatally defective for (i) lack of authority of respondent's lawyers to file the
same; (ii) having been filed out of time; (iii) non-submission of an Affidavit of
Merit; and (iv) non-submission of a Certification against Forum-Shopping.23
It is argued by petitioners that the Sandiganbayan should have denied
respondent's Motion to Rescind outright for having been filed without
authority from the PCGG En Banc and the President of the Republic, both of
whom earlier approved and authorized the execution of the Compromise
Agreement. According to petitioners, after final judgment has been rendered
in a case, an attorney has no implied authority from his client to seek material
or substantial alterations or modifications in such judgment.24
Petitioners claim that the Motion to Rescind was filed only on October 5,
1998, or beyond sixty (60) days from the time the Sandiganbayan
promulgated its July 31, 1998 Decision approving the Compromise
Agreement.25 In support of their petition, petitioners cite Section 3 of Rule 38
which requires that the petition for relief be filed within sixty (60) days after
the party seeking the relief learns of the judgment or final order to be set
aside, and not more than six (6) months after such judgment or final order
was entered. They also invoke the case of Samonte v. Samonte26 where the
Court held that a judgment upon compromise is deemed to have come to the
knowledge of the parties on the very day it is entered.27
It is further argued by petitioners that the Sandiganbayan's finding that the
settlement between petitioners and respondent was attended by fraud has no
factual or legal basis. Petitioners point out that the property values cited by
respondent in its Motion to Rescind were based solely on the estimates of
the PCGG lawyers and no evidence of the valuation of the properties were
presented before the Sandiganbayan to establish fraud. They also contend
that the Sandiganbayan had no legal basis for taking judicial notice of the
fact that agricultural land in rural areas such as Famy and Pangil, Laguna is
much cheaper and is usually sold by the hectare, while land in Metro Manila
and in nearby municipalities such as Muntinlupa is more valuable and sold
per square meter. Petitioners insist that knowledge of the valuation of
property is not a condition sine qua non for the validity of a compromise
agreement.28
Petitioners also assert that the Sandiganbayan did not have jurisdiction to
annul the Compromise Agreement because its July 31, 1998 Decision had
already become final and executory. Moreover, as a contract validly entered
into by the parties, the Compromise Agreement had binding effect and
authority on the parties thereto even if it were not judicially approved.29
Petitioners likewise contend that the Sandiganbayan cannot alter the
Compromise Agreement which is a valid and binding contract between
themselves and respondent and impose the additional requirement that "the
moneys, properties or assets involved in the compromise must be fully
disclosed and described not only as to the number or area (in case of real
properties) but also as to their exact location, classification, appraised and
fair market value, liens and encumbrances, whether titled or not, etc., so as
to leave no room for doubt that all the parties, the Court and the public know
exactly what each party is giving or taking away, and under what specific
terms and conditions."30 According to them, the imposition of this
requirement would be beyond the scope of the Sandiganbayan's authority.31
Lastly, petitioners argue that the Compromise Agreement can no longer be
rescinded because it had already been implemented. In support of this
argument, petitioners claim that on September 22, 1997, or four days after
the signing of the agreement, they delivered to the PCGG the original TCTs
of the properties ceded to respondent under the agreement.32
Respondent, through the OSG, contends that the Sandiganbayan's April 11,
2000 Resolution which granted the motion to rescind the Compromise
Agreement and set aside its July 31, 1998 Decision cannot be the proper
subject of a Petition for Certiorari. According to respondent, petitioners were
not without any other remedy from the adverse ruling of the Sandiganbayan,
and they should have gone to trial and reiterated their special defenses.33
Respondent also maintains that the Sandiganbayan did not err in denying
petitioners' motion for voluntary inhibition of its members because petitioners'
allegations of partiality and bias were not supported by clear and convincing
evidence.34
It is also argued by respondent that there is no rule or law requiring that
pleadings or motions filed by lawyers of the government or the PCGG must
first be approved by the PCGG En Banc and by the President of the
Republic.35
Anent the alleged procedural infirmities in the filing of the Motion to Rescind,
respondent asserts that it complied with the reglementary period for the filing
of a petition for relief from judgment under Rule 38 and that it is not an
initiatory pleading which is required to be accompanied by a Certification
against Forum-Shopping.36
Respondent disagrees with the contention of petitioners that the
Sandiganbayan already lost jurisdiction over the case when it rendered its
Decision on the Compromise Agreement on July 31, 1998 considering that
the decision is immediately executory since there is no appeal from such
judgment. According to respondent, the Rules of Court does recognize the
jurisdiction of the court which rendered a decision over a petition for relief
from the same decision, and does not distinguish whether the judgment is
based on the evidence presented or on a compromise agreement. Moreover,
as an exception to the general rule that the court which rendered judgment
on the compromise cannot modify such compromise, the court may order
modifications thereon when the parties consent to such modification or when
there is a hearing to determine the presence or absence of vitiated
consent.37
Respondent adds that the Sandiganbayan did not make a new contract for
the parties but simply declared their Compromise Agreement null and void
with the net effect of continuing the case from where it left off.38
Respondent insists that a compromise agreement which is unconscionable,
shocking to the mind and contrary to law and public policy, such as that
entered into by it with petitioners, is null and void. A void compromise
agreement vests no rights and creates no obligations. Considering that the
compromise agreement sought to be declared void in this case is one which
is prejudicial to the government, it is the Court's duty to strike it down as null
and void.39
It is argued by respondent that while it did not present additional evidence
after it filed the Motion to Rescind, it submitted the motion on the basis of all
the verified pleadings and papers on record. Respondent likewise claims that
the Sandiganbayan did not err in taking judicial notice of the fact that
agricultural lands in the provinces, such as the lands titled in petitioners'
names in Famy and Pangil, Laguna, are much cheaper than lands in urban
areas such as those in Muntinlupa City. Respondent insists that such fact is
a matter of public knowledge and may be taken judicial notice of under
Section 1, Rule 129 of the Revised Rules of Court.40
Respondent also points out that petitioners expressly admitted in their
Answer to the Motion to Rescind that the value of the properties which they
ceded to respondent under the Compromise Agreement is less than the
value of the properties retained by them.41
Respondent claims that there was fraud of an extrinsic character because its
representatives in the PCGG connived with petitioners in concealing the
assessed or market values of the properties subject of the Compromise
Agreement to make it appear that the latter adhered to the 75%-25% ratio
adopted by the PCGG in entering into compromise of cases involving the
recovery of ill-gotten wealth. It is pointed out by respondent that the OSG
was in fact initially reluctant to file the motion for approval of the compromise
agreement with the Sandiganbayan because the Compromise Agreement
only mentioned the areas of the properties but conspicuously failed to
mention the property values thereof. Respondent explained:
On October 7, 1997, the PCGG forwarded to the OSG a copy of the
Compromise Agreement between the Republic and the Arganas in
SB Civil Case No. 0026, with a request that the OSG file a motion
with the Sandiganbayan for the approval of the said Compromise
Agreement. On November 7, 1997, in reply to the letter of PCGG,
the OSG with then Solicitor General Silvestre H. Bello III as
signatory, wrote the PCGG requesting it to submit to the OSG
clarification on the provision in the compromise agreement that the
properties mentioned therein comprise all the sequestered assets
subject of the litigation considering that in the petition filed by the
Republic, it is alleged that the late mayor Argana acquired no less
than 251 OCTs/TCTs in Muntinlupa and the neighboring towns plus
some other ill-gotten properties. The OSG likewise opined that the
Compromise Agreement must first be submitted to the President for
his approval before submitting it to the Sandiganbayan.
On February 10, 1998, the OSG received a reply from the PCGG,
through Commissioner Herminio Mendoza, reiterating that the PCGG
has decided to enter into the compromise agreement because it
believes that the evidence may not be sufficient to warrant continuing
prosecution of Civil Case No. 0026 against the Arganas.
With respect to OSG's request for clarification, the PCGG furnished
the OSG a copy of the report conducted by the PCGG Research and
Development Department whereby it is stated that there are 324
OCTs/TCTs evaluated representing real properties of the late Mayor
Argana with a total land area of 481.77422 hectares out of which the
Republic will get 361.9203 hectares or 75.12% of the total land area
under the Compromise Agreement. No mention, however, was made
as to the value of the properties to be ceded to the Republic and the
properties to be retained by the Arganas.
On March 2, 1998, the OSG, through then Solicitor General Romeo
C. dela Cruz, again wrote the PCGG reiterating its previous position
that before submitting the compromise agreement to the
Sandiganbayan for approval, it must first be submitted to the
President of the Philippines for his approval as required in par. 6 of
the Compromise Agreement. The OSG also reiterated its request for
clarification regarding the properties covered by the compromise
 agreement as the Report submitted to it made mention of 361.9203
hectares or 75.12% out of the total land area of 481.71422 hectares
to be ceded to the Republic, and 24.88% to be retained by the
Arganas, no mention whatsoever was made of the kind of land,
location and value of the respective areas.
On June 2, 1998, the OSG received a letter dated May 29,1998 from
then Commissioner Herminio A. Mendoza forwarding it copy of the
approval by then President Fidel Ramos of the Compromise
Agreement. With respect to its query, it was stated therein that the
PCGG is unable to determine the value of the land to be ceded to
the Republic and those to be retained by the Arganas because of the
big number of the parcels of the land located mainly in Muntinlupa,
Metro Manila and Laguna and/or the lack of available records
showing their respective values for tax purposes. The PCGG
reiterated their request that the OSG file with the Sandiganbayan in
SB Civil Case No. 0026 a motion for the approval of the compromise
agreement.
Obviously, through such a scheme, those in the PCGG then who
handled or were involved with the case fraudulently gave the
Compromise Agreement a semblance of fairness and official
acceptability, but in truth, it was grossly disadvantageous to the
government. The motion to approve compromise agreement was
filed by the OSG out of courtesy as the PCGG was able to get the
approval of then Pres. Fidel V. Ramos but not because it (OSG)
totally approved the same after an independent evaluation of the
report. 42 (Emphasis in the original.)
Finally, respondent argues that the Compromise Agreement had not yet
been implemented. Although petitioners delivered the TCTs covering the lots
ceded to respondent under the terms of the compromise on September 22,
1997, such delivery could not have the effect of implementation of the
Compromise Agreement because the contract was submitted to the
Sandiganbayan for approval only on June 15, 1998. The Compromise
Agreement expressly required that in order for it to be effective, it must be
approved by the President of the Republic and of the Sandiganbayan.43
The issues for the Court's resolution are as follows:
1) Whether a petition for certiorari is the proper remedy;
2) Whether the OSG and the PCGG lawyers have authority to file the
Motion to Rescind on behalf of respondent;
3) Whether the Motion to Rescind, which was treated by the
Sandiganbayan as a petition for relief, complied with the
requirements of Rule 38 of the 1997 Rules of Civil Procedure;
4) Whether the Sandiganbayan acted with grave abuse of discretion
in granting the Motion to Rescind and in setting aside its Decision
dated July 31, 1998; and
5) Whether the members of the Sandiganbayan's Third Division
should have inhibited themselves from resolving petitioners' Motion
for Reconsideration.
The Court shall first tackle the first, second, third and fifth issues
since these involve procedural matters.
The Court does not agree with respondent's contention that a petition for
certiorari is not the proper remedy to assail the February 22, 2001 Order of
the Sandiganbayan which affirmed its earlier directive to set the case against
petitioners for pre-trial following the annulment of its judgment by
compromise agreement. A special civil action for certiorari may be instituted
when any tribunal, board or officer exercising judicial or quasi-judicial
functions has acted without or in excess of jurisdiction, or with grave abuse of
discretion amounting to lack or excess of jurisdiction, and there is no appeal,
nor any plain, speedy and adequate remedy in the ordinary course of law.44
The Court has previously held that an order setting the case for further
proceedings, issued after the original judgment rendered pursuant to a
compromise agreement is set aside, is an interlocutory order and is therefore
not appealable.45 Since no appeal is available against such an order, the
proper remedy to assail it is a special civil action for certiorari. The remedy
taken by petitioners is therefore proper.
Petitioners' contention that the Motion to Rescind filed by the lawyers of the
PCGG and of the OSG should have been treated by the Sandiganbayan as a
mere scrap of paper because the motion was filed without the authority of the
PCGG En Banc and of the President of the Republic has no legal basis.
There is no requirement under the law that pleadings and motions filed by
lawyers of the government or the PCGG must first be approved by the PCGG
En Banc and by the President of the Philippines. More importantly, R.A. No.
1379 expressly authorizes the OSG to prosecute cases of forfeiture of
property unlawfully acquired by any public officer or employee.46 It must be
remembered that it was the OSG which filed Civil Case No. 0026 for the
forfeiture of petitioners' allegedly ill-gotten wealth, and that the Compromise
Agreement between petitioners and respondent was an amicable settlement
of that case. By filing an action for rescission of the Compromise Agreement
based on extrinsic fraud, the OSG was merely performing its legal duty to
recover the wealth purportedly amassed unlawfully by the late Mayor Argana
during his terms as Mayor of Muntinlupa. The Motion to Rescind was filed
precisely because the PCGG, as respondent's authorized representative in
the compromise, discovered that the execution of the Compromise
Agreement was attended by fraud and sought the help of the OSG which in
turn is the duly authorized government agency to represent respondent in
forfeiture cases under R.A. No. 1379. Hence, the Sandiganbayan correctly
upheld the authority of the OSG, assisted by the PCGG, in filing the Motion
to Rescind.
The Court also finds that there was no grave abuse of discretion on the part
of the Sandiganbayan in granting the Motion to Rescind, which it treated as a
petition for relief from judgment under Rule 38 of the 1997 Rules on Civil
Procedure. Section 3 thereof prescribes the periods within which the petition
for relief must be filed:
Time for filing petition; contents and verification. A petition provided
for in either of the preceding sections of this Rule must be verified,
filed within sixty (60) days after the petitioner learns of the judgment,
final order or other proceeding to be set aside, and not more than six
(6) months after such judgment or final order was entered, or such
proceeding was taken, and must be accompanied with affidavits
showing the fraud, accident, mistake or excusable negligence relied
upon, and the facts constituting the petitioner's good and substantial
cause of action or defense, as the case may be.
The Court has previously held that as applied to a judgment based on
compromise, both the sixty (60)-day and six (6)-month reglementary periods
within which to file a petition for relief should be reckoned from the date when
the decision approving the compromise agreement was rendered because
such judgment is considered immediately executory and entered on the date
that it was approved by the court.47
Applying the foregoing rule to the present case, the sixty (60)-day period
should be counted from July 31, 1998, the date of the Sandiganbayan
Decision granting the Motion to Approve Compromise Agreement. The
sixtieth day from July 31, 1998 is September 29, 1998. The Motion to
Rescind was filed by the OSG only on October 5, 1998, clearly several days
after the sixtieth day from the rendition of the July 31, 1998 Decision.
This notwithstanding, the Court finds that no grave abuse can be ascribed to
the Sandiganbayan in admitting the Motion to Rescind as a petition for relief
was timely filed.
Although as a general rule, the party filing a petition for relief must strictly
comply with the sixty (60)-day and six (6)-month reglementary periods under
Section 3, Rule 38,48 it is not without exceptions. The Court relaxed the rule
in several cases49 and held that the filing of a petition for relief beyond the
sixty 60-day period is not fatal so long as it is filed within the six (6)-month
period from entry of judgment.50
The Court notes that the filing of the Motion to Rescind on October 5, 1998
was indeed seven days beyond the sixty 60-day period but still well within the
six (6)-month period from entry of judgment. Moreover, the case involves an
alleged fraud committed against the Republic, and thus justifies the liberal
interpretation of procedural laws by the Sandiganbayan.
Petitioners' claim that respondent failed to attach an affidavit of merit to its
Motion to Rescind is belied by the record of the case. Petitioners in fact
attached, as Annex "N" of their Petition for Certiorari, a copy of the
respondent's Motion to Rescind. The Affidavit of Merit signed by Dennis M.
Taningco, the counsel of the PCGG in Civil Case No. 0026, was attached to
the Motion to Rescind. In any case, the Court in Mago v. Court of Appeals51
held that the absence of an affidavit of merit does not always result in the
denial of the petition for relief, so long as the facts required to be set out in
the affidavit appear in the verified petition. The oath which forms part of the
petition elevates it to the same category as an affidavit.52
Neither was it necessary for respondent to attach a Certification against
Forum-Shopping to the Motion to Rescind. As correctly held by the
Sandiganbayan, the Motion to Rescind, which in effect was a petition for
relief, is not an initiatory pleading which requires the inclusion of a
Certification against Forum-Shopping. Section 2, Rule 38 requires that a
petition for relief must be filed with the court which rendered the judgment or
order sought to be set aside, and in the same case wherein the judgment or
order was rendered. If the court finds that the allegations in the petition for
relief are true, it shall set aside the judgment and try the principal case upon
the merits as if a timely motion for new trial had been granted.53 Clearly,
then, a petition for relief is not an initiatory pleading in a new case which
would require the filing by the petitioner therein of a Certification of Non-
Forum Shopping.
The Court also finds no abuse of discretion by the Sandiganbayan in denying
petitioners' Urgent Motion for Voluntary Inhibition. As explained in Gutang v.
Court of Appeals,54 the import of the rule on voluntary inhibition is that the
decision of a judge on whether or not to inhibit is left to his or her sound
discretion and conscience, based on his or her rational and logical
assessment of the case where the motion for inhibition is filed. It implies that
in addition to pecuniary interest, relationship, or previous participation in the
matter under litigationwhich are grounds for mandatory inhibition under the
first paragraph of Section 1, Rule 137 of the Revised Rules of Courtthere J. Estrada of the PCGG Research and Development Department to
might be other causes that could diminish the objectivity of the judge, thus the PCGG Chairman, dated August 18, 1997, the following
warranting his or her inhibition. Petitioners' claim of bias and partiality on the exposition appears:
part of the Sandiganbayan justices who issued the April 11, 2000 Resolution,
evaluated in light of the resolution itself, is evidently more imagined than real. "12. On July 10, 1996, the Arganas submitted a proposal for
To say, as is petitioners' wont, that a judge who throws out a party's motion Compromise Agreement (copy attached, per Annex "J") that would
in the language employed by the Sandiganbayan in the questioned cede by donation about 231 hectares of agricultural lands to the
Resolution is necessarily prejudiced, is to be indiscriminate and precipitate. government, Xerox copies of nine (9) TCTs attached therewith,
enumerated as follows:
Petitioners' assertion that the April 11, 2000 Resolution was harshly worded
and evinced prejudgment of the case in respondent's favor is easily
disproved by a reading of the Resolution in its entirety. As will be discussed "TCT No. Area in Square Meters Location
hereafter, the Sandiganbayan's pronouncement that the Compromise
Agreement was grossly disadvantageous and prejudicial to the government T-3813 47,908 Famy, Laguna
is supported by the facts on record. In charging the Sandiganbayan with
forejudgment when it said that "all it takes to prove the case is evidence that T-8314 47,461 -do-
the properties are manifestly out of proportion to the late Mayor Maximino A.
Argana's salary and to his other lawful income and other legitimately T-8315 30,000 -do-
acquired income,"55 petitioners have taken the statement out of context. The
Sandiganbayan made the statement in relation to its bewilderment as to why T-8316 40,000 -do-
the PCGG expressed difficulty in prosecuting the case against the late Mayor
Argana in spite of the presumption regarding unexplained wealth in Section 8 T-8317 30,000 -do-
of R.A. No. 3019 (the Anti-Graft and Corrupt Practices Act). The
Sandiganbayan therefore had legal and factual grounds to deny petitioners' T-4104 20,000 -do-
motion for inhibition.
T-4106 38,550 -do-
Anent the propriety of the Sandiganbayan's nullification of the Compromise T-4108 31,618 -do-
Agreement on the ground of extrinsic fraud, the Court holds that no error nor
grave abuse of discretion can be ascribed to the Sandiganbayan for ruling T-4044 1,137,361 San Isidro & Banilan,
that the execution of the Compromise Agreement was tainted with fraud on 883,355 Pangil, Laguna
the part of petitioners and in connivance with some PCGG officials. A
circumspect review of the record of the case reveals that fraud, indeed, was 2,306,253 Sq. Meters
perpetuated upon respondent in the execution of the Compromise 230,6253 Hectares
Agreement, the assessed or market values of the properties offered for
settlement having been concealed from the reviewing authorities such as the
PCGG En Banc and even the President of the Republic. The discussion of "Another big tract of land located at Matikiw, Pangil, Laguna,
the Sandiganbayan on the nature and extent of the fraud perpetuated upon consisting of 131,2950 hectares covered by TCT No. T-4009, per
respondent in the execution of the Compromise Agreement is clear and Annex "K" may be considered for inclusion in the proposed
convincing: compromise settlement. The reason for this is that this land is being
eyed by the DAR for distribution under the CARP. As a whole, the
Noticeable from the documents submitted to the court after the government may be able to acquire about 361.9203 hectares of land
decision approving the Compromise Agreement was promulgated is equivalent to 75.12% of the 481.7742 hectares of land of
the fact that only the percentage of sharing based on area was sequestered real estate property belonging to the Arganas and other
mentioned and brought to the attention of the PCGG en banc and owners.
the Solicitor General. The value of the properties was never, and not
even once, mentioned. Thus, in the Memorandum of Director Mauro
"However, of the 481.7742 hectares covered by a sequestration nine (9) TCTs. Another property, however, consisting of 131.2950
order, the late Mayor Argana owns about 409.50817 hectares and hectares may be considered for inclusion which would increase to
possibly the heirs are willing to cede 361.9203 hectares which is 361.9203 hectares of land that may be ceded to the government.
equivalent to 88.38%, retaining 47.5887 hectares or 11.62% of what
they owned. "In the event that the 361.9203 hectares are finally considered and
acceptable by both parties, the PCGG and the Arganas, the
"E. EVALUATION 481.77422 hectares of sequestered property would be accounted as
follows:
"1) As presented in Annex "L", page 13, the total area of real estate
property sequestered aggregated to 481.7742 hectares accounted Total Area Sequestered 100.00% 48
as follows: Accounted as follows:
a) To be ceded the Government 75.12% 3
Total Area Sequestered 100.00% 481.77422 b) To be retained by the late Mayor Argana's 9.88% 4
Accounted as Follows: Heirs
c) Owned by his Brothers & Sisters 5.53%
a) owned by Mayor Maximino Argana 75.12% 409.50817 has. d) Foreclosed by Los Baos Rural Bank 1.24%
b) Owned by his Brothers & Sisters 9.88% 26.6318 has. e) Owned by Other Persons 8.23% 3
c) Foreclosed by Los Baos Rural Bank 1.24% 5.9856 has. Total 100.00% 48
d) Owned by Other Persons 8.23% 39.64865 has.
TOTAL 100.00% 481.77422 has.
"However, since the late Mayor Argana owns 409.50817 hectares
sequestered and may possibly cede 361.9203 hectares, the
"2) Out of the total area of 481.77422 hectares covered by a percentage share of the government would be 88.38% of the
sequestration order, about 409.50817 hectares are owned by the 409.50817 hectares actually registered in his name and his children.
late Mayor Argana. The other lots are owned by his brothers and
sisters (26.6318 hectares), foreclosed by Los Baos Rural Bank "G. RECOMMENDATION
(5.9856 hectares), and registered and/or acquired by other persons
(39.64865 hectares). In the event that the other big area consisting "The PCGG wanted to recover as much as it could and as fast as
of 131.2950 hectares of land is included in the compromise possible, while the Arganas wanted to buy peace without admitting
settlement in favor of the government, a total of 361-50817 (sic) guilt. In order to avoid further lengthy litigation and to put an end to
hectares of land would comprise about 88.38 % of the 409.50817 an almost ten-year unresolved sequestration issue, and to expedite
hectares registered in the name of the late Mayor Argana. recovery so that the remaining assets may be used to contribute to
the national recovery, the 230.6253 hectares of land covered by nine
3) However, as a whole the 361.9203 hectares to be ceded to the (9) TCTs (Nos. T-3813, T-3814, T-3815, T-3816, T-3817, T-4104, T-
government is equivalent to 75.12% of the 481.77422 hectares 4106, T-4108 and T-4044) offered by the Arganas be favorably
sequestered by PCGG as presented above. Since the late mayor considered, on condition that another real estate property covered by
owns 409.50817 hectares to the government, the percentage share TCT No. T-4009, located at Matikiw, Pangil, Laguna, consisting of
of the government would be 88.38 % and the remaining 11.62 % 131.2950 hectares, be included and to be ceded to the government.
may be retained by the heirs of the late Mayor Argana, equivalent to All other lots sequestered should be freed from the sequestration
47.58787 hectares. order.

"F. SUMMARY "As a whole, the government stands to acquire about 361.9203
hectares out of the 409.50817 hectares registered in the name of
"The family of the late Mayor Maximino A. Argana offered to cede to Sps. Maximino A. Argana, REFEDOR, and their children, equivalent
the government a total of 230.62553 hectares of land covered by
to 88.38%. The remaining 11.62% or 47.58787 hectares will be
retained by the latter.
"For the consideration of the Commission.
Signed
MAURO J. ESTRADA"
(Record, v. 6, pp. 776-78)
(Underlining supplied)
....
The value of the properties must have been raised or even
discussed during the several years that the properties were held
under sequestration. Yet, not even the PCGG bothered to produce
any tax declaration, assessment or appraisal to show the assessed
or fair market value of the properties. . . . .
Again in another Memorandum of Director Mauro J. Estrada to
PCGG Counsel Edgardo L. Kilayko, dated February 2, 1988, the
properties were listed according to the name of the owner, certificate
of title, area in square meters, location and percentages in relation to
the whole. Obvious from the listing is the absence of a column to
indicate the value of the properties or their classification. . . .
The percentage based solely on area, was clearly emphasized, as
shown by the following portions of said Memorandum:
"Out of the 409.50817 hectares registered in the name of Spouses
Maximo A. Argana and Donata A. Argana as presented above,
361.9203 hectares covering eleven (11) TCTs are to be ceded to the
government under the compromise agreement signed by Argana and
the Commission in the latter part of 1997. The 361.9203 hectares to
be ceded to the government is equivalent to 75.12 % of the total area
of 481.77422 hectares, as presented below: x x x" (Record, v. 6, p.
1739) (underlining supplied)
"As a whole, there are 324 TCTs/OCTs covering a total area of
481.77422 hectares, out of which the heirs of the late Mayor agreed
to cede 361.9203 hectares equivalent to 75.12 % of the total area.
Sometime. In August 1997, the Commission agreed to accept the
offer by concluding a compromise agreement with the heirs of the
late Mayor." (Record, v. 6, p. 1739) (underlining supplied)
....
. . . The values were deliberately omitted to make it appear that the
Compromise Agreement adheres to the 75%-25% ratio broadly
adopted by the PCGG in compromising cases of ill-gotten wealth. It
was this 75%-25% mode of compromise, with the greater share of
75% going to the government that misled the Court to believe, as We
did believe, that the Compromise Agreement was fair, reasonable
and advantageous to the Government. . . .
. . . What was projected to be a 75%-25% ratio was in reality a
00.15%-99.85% ratio, with 99.85% going to the Arganas. This is
unconscionable and immoral. And since it results in a transaction
grossly disadvantageous and immoral to the government, it is
against the law as being violative of Section 3(g) of Republic Act
3019.
...
In the instant case, fraud of an extrinsic character exists because the
representatives of plaintiff Republic in the PCGG connived with
defendants in hiding the assessed or market values of the properties
involved, so as to make it appear that the Compromise Agreement
adhered to the 75%-25% ratio adopted by the PCGG in entering into
compromise of cases involving the recovery of ill-gotten wealth.
Through their infidelity, those in the PCGG who handled or were
closely involved with the case during the last days of the previous
administration fraudulently gave the Compromise Agreement a
semblance of fairness and official acceptability. They sold plaintiff
Republic down the river by entering into an agreement grossly
disadvantageous to the government. For while plaintiff Republic got
00.15% (00.15074) of the estimated value of all the properties
involved in this case, defendants almost ran away with 99.85%
(99.84526) of their value. This is patently unfair. It is no compromise
but a virtual sell-out. It could not have been pulled off without the
connivance or collusion of those responsible for the case in the
PCGG. Instead of protecting the interest of the government, they
connived at its defeatalmost.56 (Emphasis in the original.)
It is evident from the foregoing that the ruling of the Sandiganbayan is
grounded on facts and on the law. The Court sees no reason to depart from
the conclusions drawn by the Sandiganbayan on the basis of its findings,
especially considering that the three justices comprising the
Sandiganbayan's Third Division conducted a thorough examination of the
documents submitted by the parties to this case, heard the testimonies of the
parties' witnesses and observed their deportment during the hearing on the
Motion to Rescind.

Moreover, it is an established rule that the State cannot be estopped by the

mistakes of its agents.57 Respondent cannot be bound by a manifestly
unjust compromise agreement reviewed on its behalf and entered into by its
representatives from the PCGG who apparently were not looking after
respondent's best interests.

WHEREFORE, the petition is DISMISSED for lack of merit. The Resolution

dated April 11, 2000 of the Sandiganbayan granting the Motion to Rescind
Compromise Agreement and to Set Aside Judgment by Compromise and
setting the case for pre-trial, as well as the Order dated February 22, 2001
denying petitioners' motion for reconsideration, are hereby AFFIRMED.

Costs against petitioners.

SO ORDERED.
G.R. No. 169604 March 6, 2007
NELSON P. COLLANTES, Petitioner,
vs.
HON. COURT OF APPEALS, CIVIL SERVICE COMMISSION and
DEPARTMENT OF NATIONAL DEFENSE, Respondents.
DECISION
CHICO-NAZARIO, J.:
A decision that has acquired finality becomes immutable and unalterable. A
final judgment may no longer be modified in any respect, even if the
modification is meant to correct erroneous conclusions of fact and law; and
whether it be made by the court that rendered it or by the highest court in the
land.1
What would happen, however, if two separate decisions, irreconcilably
conflicting with each other, both attained finality? Quite clearly, to hold that
both decisions are immutable and unalterable would cause not only
confusion and uncertainty, but utter bewilderment upon the persons tasked to
execute these judgments.
This is a Petition for Review on Certiorari under Rule 45 of the Rules of
Court, seeking to set aside the Decision2 dated 10 March 2005 and the
Resolution3 dated 31 August 2005 of the Court of Appeals in CA-G.R. SP
No. 78092.
The undisputed facts of this case are summarized by the Court of Appeals:
Petitioner Nelson Collantes (hereafter, Collantes) was conferred Career
Executive Service Eligibility on 29 February 1996. Then President Fidel V.
Ramos accorded him the rank of Career Executive Service Officer (CESO) II
on 10 February 1997. More than a year later, he was appointed as
Undersecretary for Peace and Order of the Department of Interior and Local
Government (DILG).
With the change of administration, Collantes allegedly received word from
persons close to then President Ejercito Estrada to give up his position so
that the President could unreservedly appoint his key officials. As such,
Collantes relinquished his post at the DILG.
Thereafter, on 1 July 1998, President Estrada appointed Collantes to the
controversial post Undersecretary for Civilian Relations of the Department
of National Defense (DND). As it happened, his stint in the DND was short
lived. Collantes was supposedly ordered by then Secretary Orlando Mercado
to renounce his post in favor of another presidential appointee, General
Orlando Soriano. In deference to the Presidents prerogative, he resigned
from office believing that he will soon be given a new assignment.
Unfortunately, Collantes was not given any other post in the government, as
in fact, he received a letter from President Estrada terminating his services
effective 8 February 1999. Consequently, on 24 March 1999, Collantes
requested the assistance of the Career Executive Service Board relative to
the termination of his services as Undersecretary for Civilian Relations of the
DND invoking his right to security of tenure as a CESO.
The termination of Collantes services, notwithstanding, President Estrada
accorded Collantes the highest rank in the CES ranking structure, CESO
Rank I, on 17 July 1999. But then, despite this promotion in rank, Collantes
did not receive new appointment, and worse, the President appointed Mr.
Edgardo Batenga to the much coveted position of Undersecretary for Civilian
Relations of the DND.
Taking definite action on the matter, Collantes instituted a Petition for Quo
Warranto and Mandamus before Us on 29 January 2001, docketed as C.A.
G.R. SP NO. 62874. Collantes maintained that he was constructively
dismissed from work, without any cause and due process of law, and thus,
his position in the DND was never vacated at all. Accordingly, he prayed that
the appointment of Mr. Edgardo Batenga be nullified, and that he be
reinstated to his former position with full back salaries. Notably, Collantes
also sought for appointment to a position of equivalent rank commensurate to
his CESO Rank I if reinstatement to his former position is no longer legally
feasible.
Meanwhile, on 13 August 2001, the CSC favorably acted on Collantes letter-
request issuing Resolution No. 011364, and thereby holding that Collantes
relief as Undersecretary of DND amounted to illegal dismissal as he was not
given another post concomitant to his eligibility.
Then, on 30 August 2001, We rendered Our Decision in C.A. G.R. SP No.
62874 dismissing the Petition for Quo Warranto and Mandamus filed by
Collantes. Significantly, We pronounced:
"By such actuations of the petitioner, the Court finds that he has (sic)
effectively resigned from his position as Undersecretary of the DND, and the
public respondents are under no compulsion to reinstate him to his old
position.
xxxx
"In this case, petitioner has undoubtedly shown his intention to relinquish his
public office, and has in fact surrendered such post to the Chief Executive,
who, on the other hand, has shown his acceptance of the same by
appointing a new person to the position relinquished by the petitioner.
xxxx
Quo warranto, it must be pointed out, is unavailing in the instatnt case, as the
public office in question has not been usurped, intruded into or unlawfully
held by the present occupant. Nor does the incumbent undersecretary
appear to have done or suffered an act which forfeits his assumption.
(Section 1, Rule 66, 1997 Rules of Civil Procedure). Furthermore, it appears
that the action for quo warranto, assuming it is available, has already lapsed
by prescription, pursuant to Section 11 of the pertinent Rule ...
xxxx
WHEREFORE, premises considered, the instant petition for Quo Warranto
and Mandamus is hereby DISMISSED."
The controversy reached the Supreme Court as G.R. No. 149883.
Nevertheless, the case was considered closed and terminated when
Collantes manifested his desire not to pursue his appeal and withdraw his
Petition for Review on Certiorari. Thereafter, Collantes moved for the
execution of CSC Resolution No. 011364, which was accordingly granted
through CSC Resolution No. 020084 dated 15 January 2002 "directing the
DND to give Collantes a position where his eligibility is appropriate and to
pay his backwages and other benefits from the time of his termination up to
his actual reinstatement."
In a Letter dated 7 February 2002, the Legal Affairs Division of the DND,
through Atty. Leticia A. Gloria, urged the CSC to revisit its Resolutions which
were entirely in conflict with Our 30 August 2001 Decision in C.A. G.R. SP
NO. 62874, which has attained finality pursuant to the Supreme Courts
Resolution in G.R. No. 149883.
Consequently, in complete turnabout from its previous stance, the CSC
issued Resolution No. 021482 dated 12 November 2002 declaring that had it
been properly informed that a Petition for Quo Warranto and Mandamus was
then pending before Us, it would have refrained from ruling on Collantes
quandary, thus:
"WHEREFORE, the Motion for Reconsideration of Assistant Secretary for
Legal Affairs Leticia A. Gloria of the department of National Defense (DND) is
hereby GRANTED and CSC Resolutions Nos. 01-1364 dated August 13,
2001 and 02-0084 dated January 15, 2002 are reversed. Accordingly,
pursuant to the decision of the Court of Appeals, Nelson P. Collantes is
deemed effectively resigned from his position as Undersecretary of the
DND."
Forthwith, Collantes moved for a reconsideration of this Resolution, but was
denied by the CSC in the second assailed Resolution No. 030542 dated 5
May 2003.4
On 18 July 2003, herein petitioner Collantes then filed a Petition for Certiorari
with the Court of Appeals praying for the reversal of the Civil Service
Commission (CSC) Resolutions No. 021482 and No. 030542. Before the
Court of Appeals can decide this case, however, petitioner was appointed as
General Manager of the Philippine Retirement Authority on 5 August 2004.
The Court of Appeals dismissed the Petition for Certiorari in the assailed 10
March 2005 Decision:
WHEREFORE, the Petition for Certiorari is hereby DISMISSED. No grave
abuse of discretion may be imputed against the Civil Service Commission for
rendering Resolution Nos. 021482 and 030542, dated 12 November 2002
and 5 May 2003, respectively. No pronouncement as to costs.5
The Motion for Reconsideration filed by petitioner was denied in the assailed
31 August 2005 Resolution.6
Petitioner filed the present Petition for Review, seeking the reversal of the
foregoing Decision and Resolution of the Court of Appeals. In view of his 5
August 2004 appointment, however, petitioners prayer is now limited to
seeking the payment of backwages and other benefits that may have been
due him from the time of his alleged dismissal on 8 February 1999 to his
appointment on 5 August 2004. Petitioner submits the following issues for
our consideration:
A.
WHETHER THE COURT OF APPEALS COMMITTED A GRAVE AND
REVERSIBLE ERROR WHEN IT HELD THAT THE DECISION IN CA-G.R.
NO. 62874 IN THE COURT OF APPEALS IS A BAR TO IMPLEMENT THE
FINAL AND EXECUTORY JUDGMENT OF THE CIVIL SERVICE
COMMISSION DATED AUGUST 14, 2001.
B.
WHETHER THE COURT OF APPEALS COMMITTED A GRAVE AND
REVERSIBLE ERROR WHEN IT DID NOT FIND THAT THE CIVIL
SERVICE COMMISSION COMMITTED GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT
REVERSED ITS VERY OWN DECISION WHICH HAS LONG BECOME
FINAL AND EXECUTORY AND IN FLAGRANT VIOLATION OF
PETITIONERS RIGHT TO DUE PROCESS.
C.
WHETHER THE COURT OF APPEALS COMMITTED A GRAVE AND
REVERSIBLE ERROR WHEN IT UPHELD THE RESOLUTION OF THE
CIVIL SERVICE COMMISSION WHICH HELD THAT PETITIONER MAY BE
REMOVED FROM HIS POSITION AS UNDERSECRETARY OF THE
DEPARTMENT OF NATIONAL DEFENSE WITHOUT THE CONCOMITANT
TRANSFER TO A POSITION EQUIVALENT IN RANK OR BE REMOVED
THEN, BE FLOATED PERPETUALLY, WHICH IS TANTAMOUNT TO A
CONSTRUCTIVE DISMISSAL, IN VIOLATION OF HIS RIGHT TO
SECURITY OF TENURE AS A CAREER EXECUTIVE SERVICE ELIGIBLE.7
Both petitioner and herein respondents CSC and Department of National
Defense (DND) invoke the doctrine of immutability of final judgments.
Petitioner claims that the 13 August 2001 Resolution of the CSC, which held
that petitioner "was illegally removed as Undersecretary of the Department of
National Defense and therefore x x x should be given a position where his
eligibility is appropriate or sufficient," has attained finality. Petitioner adds
that, not only has there been no appeal or motion for reconsideration filed
within the allowable periods, the CSC even granted the Motion for Execution
filed by petitioner in its Order dated 15 January 2002. Petitioner thereby
invokes our ruling that, before a writ of execution may issue, there must
necessarily be a final judgment or order that disposes of the action or
proceeding.8 Petitioner also faults the CSC for ruling on a mere letter filed by
Atty. Leticia Gloria of the DND, which petitioner claims is fatally defective for
failure to comply with the procedural due process clause of the Constitution,
the Rules of Court, and the Uniform Rules in Administrative Cases in the Civil
Service which require notice to adverse parties.9
Respondents, on the other hand, invoke the same doctrine of immutability of
final judgments, this time with respect to the 30 August 2001 Decision of the
Court of Appeals dismissing the Petition for Quo Warranto and Mandamus
filed by petitioner. This Court of Appeals Decision became final and
executory when petitioner withdrew the Motion for Extension to File a Petition
for Review on Certiorari he filed with this Court.10
Forum Shopping, Res Judicata, and Litis Pendentia
Our rules on forum shopping are meant to prevent such eventualities as
conflicting final decisions as in the case at bar. We have ruled that what is
important in determining whether forum shopping exists or not is the vexation
caused the courts and parties-litigants by a party who asks different courts
and/or administrative agencies to rule on the same or related causes and/or
grant the same or substantially the same reliefs, in the process creating the
possibility of conflicting decisions being rendered by the different fora upon
the same issues.11
More particularly, the elements of forum shopping are: (a) identity of parties
or at least such parties as represent the same interests in both actions; (b)
identity of the rights asserted and the reliefs prayed for, the relief being
founded on the same facts; and (c) the identity of the two preceding
particulars, such that any judgment rendered in the other action will,
regardless of which party is successful, amount to res judicata in the action
under consideration.12
Forum shopping can be committed in three ways: (1) filing multiple cases
based on the same cause of action and with the same prayer, the previous
case not having been resolved yet (where the ground for dismissal is litis
pendentia); (2) filing multiple cases based on the same cause of action and
the same prayer, the previous case having been finally resolved (where the
ground for dismissal is res judicata); and (3) filing multiple cases based on
the same cause of action but with different prayers (splitting of causes of
action, where the ground for dismissal is also either litis pendentia or res
judicata).13 If the forum shopping is not considered willful and deliberate, the
subsequent cases shall be dismissed without prejudice on one of the two
grounds mentioned above. However, if the forum shopping is willful and
deliberate, both (or all, if there are more than two) actions shall be dismissed
with prejudice.14
Petitioner disputes respondents claim, and the CSCs ruling,15 that he had
lodged two separate actions. Petitioner explains that he never filed a case
before the CSC. He merely sought the assistance of the Career Executive
Service Board (CESB) in a letter-request dated 24 March 1999. Said letter-
request, petitioner claims, did not ask for any ruling.
Petitioner claims that, considering that two years had already lapsed without
any response from the CESB, he filed on 23 January 2001 his Petition for
Quo Warranto and Mandamus with the Court of Appeals. Petitioner was
surprised when he learned through the 8 February 2001 letter of the CESB
that, on 29 November 2000, it referred petitioners request to the CSC for
appropriate action.16 Petitioner was not required to submit any pleading in
support of his request. Apparently, the CSC treated the letter-request as a
complaint or petition over which it could exercise its adjudicative powers, as it
issued its 13 August 2001 Resolution declaring petitioner to have been
illegally removed as Undersecretary of the DND, and should therefore be
given a position appropriate or sufficient for his eligibility.17 As stated above,
the Court of Appeals Decision dismissing the Petition for Quo Warranto and
Mandamus was rendered 17 days later, on 30 August 2001. Petitioner filed
with this Court a motion for an extension of time within which to file a Petition
for Review on Certiorari, but he later submitted a Manifestation for the
withdrawal of this motion as he decided not to pursue his appeal.18 Instead,
petitioner filed with the CSC on 25 October 2001 a Motion for the Issuance of
a Writ of Execution,19 which the CSC granted on 15 January 2002.20
In repeatedly asserting that he did not file two separate actions, petitioner is
arguing, without stating it categorically, that he cannot be held liable for
forum shopping. However, what one cannot do directly cannot be done
indirectly. Petitioner had been aware, through the 8 February 2001 letter of
the CESB, that his request for assistance was referred to the CSC on 29
November 2000 for appropriate action. From that point on, he knew that two
government agencies the CSC and the Court of Appeals were
simultaneously in the process of reaching their respective decisions on
whether petitioner was entitled to reinstatement or to a position appropriate
to his eligibility. Therefore, it cannot be denied that petitioner knew, from the
moment of receipt of the 8 February 2001 letter of the CESB, that he had
effectively instituted two separate cases, and whatever original intention he
had for his letter-request is, by then, forgotten. Petitioner subsequently
proceeded to act like a true forum shopper he abandoned the forum where
he could not get a favorable judgment, and moved to execute the Resolution
of the forum where he succeeded.
Petitioners above actuation is, in fact, a violation of his certification against
forum shopping with the Court of Appeals, a ground for dismissal of actions
distinct from forum shopping itself. As petitioner knew from the receipt of the
CESB letter that another claim was pending in a quasi-judicial agency
concerning these issues, he was bound by his certification with the Court of
Appeals to report such fact within five days from his knowledge thereof. This
circumstance of being surprised by the discovery of another pending claim
with another court or quasi-judicial agency is the very situation
contemplated by letter (c) in the first paragraph of Section 5, Rule 7 of the
Rules of Court:
Section 5. Certification against forum shopping. The plaintiff or principal
party shall certify under oath in the complaint or other initiatory pleading
asserting a claim for relief, or in a sworn certification annexed thereto and
simultaneously filed therewith: (a) that he has not theretofore commenced
any action or filed any claim involving the same issues in any court, tribunal
or quasi-judicial agency and, to the best of his knowledge, no such other
action or claim is pending therein; (b) if there is such other pending action or
claim, a complete statement of the present status thereof; and (c) if he
should thereafter learn that the same or similar action or claim has been filed
or is pending, he shall report that fact within five (5) days therefrom to the
court wherein his aforesaid complaint or initiatory pleading has been filed.
(Emphases supplied.)
Petitioner, however, further asserts that the issues brought in the Petition for
Certiorari filed with the Court of Appeals on 18 July 2003 and the Petition for
Quo Warranto and Mandamus filed on 29 January 2001 are distinct, and that
the Decision of the Court of Appeals in the latter cannot constitute res
judicata with respect to the former.21 Petitioner claims that the issues,
remedies and reliefs in the two cases are different, citing as basis the
textbook definitions of quo warranto, certiorari and mandamus. Petitioner
further claims that:
There is a clear distinction between the right of petitioner to the position of
Undersecretary for Civilian Relations and his right to be re-appointed to
another position of equivalent rank, in view of his CESO I status. The former
issue may have been resolved by the Court of Appeals when it ruled that
petitioner Collantes had "effectively resigned from his position as
Undersecretary of the DND, and the public respondents are under no
compulsion to reinstate him to his old position." The latter issue, or the right
of petitioner Collantes to be given a new assignment fitting to his CESO I
rank, arises from his right to security of tenure as a Career Executive Service
Eligible, and not from his appointment to the DND.22
This allegedly clear distinction springs from petitioners claim that he
resigned from his position, but not from his rank as a Career Executive
Service Officer (CESO). Petitioner claims that, as a CESO, there is a "great
difference between (1) resigning from ones position and (2) resigning or
relinquishing ones rank, as position is different from ones rank. POSITION
refers to the particular or specific office from which one may be appointed.
RANK, on the other hand, refers not to a particular position but to the class to
which one belongs in the hierarchy of authority in an organization or
bureaucracy."23 Petitioner cites Cuevas v. Bacal24:
[S]ecurity of tenure to members of the CES does not extend to the particular
positions to which they may be appointed --- a concept which is applicable
only to the first and second-level employees in the civil service --- but to the
rank to which they are appointed by the President.
xxxx
Mobility and flexibility in the assignment of personnel, the better to cope with
the exigencies of public service, is thus the distinguishing feature of the
Career Executive Service. x x x.
and General v. Roco25:
In addition, it must be stressed that the security of tenure of employees in the
career executive service (except first and second-level employees in the civil
service), pertains only to rank and not to the office or to the position to which
they may be appointed. Thus, a career executive service officer may be
transferred or reassigned from one position to another without losing his rank
which follows him wherever he is transferred or reassigned. In fact, a CESO
suffers no diminution of salary even if assigned to a CES position with lower
salary grade, as he is compensated according to his CES rank and not on
the basis of the position or office he occupies.
While there is indeed a distinction between position and rank, such that a
CESO may be transferred or reassigned from one position to another without
losing his rank, there can be no distinction between resigning from a position
and resigning from a rank. The rank of a CESO is deactivated upon
separation from the government service, which includes the resignation of a
CESO from his position. The CESB has clarified this concept of being in the
inactive status in its Resolution No. 554, series of 2002:
Rule II
xxxx
7. CESO in Inactive Status - is a CESO who no longer occupies a position in
the CES as a result of any of the modes of separation from the government
service, provided that such separation is not due to dismissal from the
service for cause.
xxxx
Rule IV
Section 1. Modes of Deactivating a CES Rank. There are three (3) modes
by which the CES Rank of a CESO may be deactivated from the CES:
1. Acceptance of a position by virtue of an appointment outside the
coverage of the CES;
2. Dropping from the rolls of government officials and employees;
and
3. Other modes of separation from the CES, provided that separation
from the CES resulting from dismissal from the service for cause and
after due process shall result in the loss of CES rank and shall not be
considered as a mode of deactivation.
xxxx
Sec. 2. Effect of Deactivation of CES Rank. A CESO whose CES rank has
been deactivated by the Board loses all the rights and privileges accorded to
him/her by law on account of his/her CES rank.
Likewise, it would be absurd for us to rule that a civil servant who resigns
from his position can compel the President to appoint him to another position.
Such a ruling would effectively derogate the discretion of the appointing
authority,26 as it will give the CESO the option to choose which position he or
she wants, by the simple expediency of resigning from the position he or she
does not want.
In sum, there is an identity of issues in the two cases which resulted in the
two conflicting final and executory decisions. But while, as stated above, the
second petition can be dismissed on the ground of either res judicata or non-
compliance with the undertakings in petitioners certification against forum
shopping, these grounds can only be invoked when the case is still pending.
As petitioner points out, the Resolution of the CSC had already become final
and executory.
The 30 August 2001 Decision of the Court of Appeals, however, has also
attained finality. Hence, we go back to the main issue in this petition: which of
the two final and executory decisions should be given effect, the 30 August
2001 Court of Appeals Decision dismissing the petitioners Petition for Quo
Warranto, or the 13 August 2001 CSC Resolution declaring petitioner
Collantes to be illegally removed as Undersecretary of the DND?
Two Conflicting Final and Executory Decisions
Jurisprudence in the United States offers different solutions to this problem:
Where there have been two former actions in which the claim or demand,
fact or matter sought to be religated has been decided contrarily, the rule
that, where there is an estoppel against an estoppel, it "setteth the matter at
large" has been applied by some authorities, and in such case both parties
may assert their claims anew. Other authorities have held that, of two
conflicting judgments on the same rights of the same parties, the one which
is later in time will prevail, although it has also been held that the judgment
prior in time will prevail. It has been held that a decision of a court of last
resort is binding on the parties, although afterward, in another cause, a
different principle was declared.27
There are thus three solutions which we can adopt in resolving the case at
bar: the first is for the parties to assert their claims anew, the second is to
determine which judgment came first, and the third is to determine which of
the judgments had been rendered by a court of last resort.
As there are conflicting jurisprudence on the second solution, it is appropriate
for this Court to adopt either the first or the third solution. The first solution
involves disregarding the finality of the two previous judgments and allowing
the parties to argue on the basis of the merits of the case anew. The third
solution merely involves the determination of which judgment has been
rendered by this Court, the court of last resort in this jurisdiction.
Adopting the third solution will result in the denial of this Petition for
Certiorari. Whereas the finality of the 13 August 2001 CSC Resolution came
about by the failure to file a motion for reconsideration or an appeal within the
proper reglementary periods, the finality of the 30 August 2001 Court of
Appeals Decision was by virtue of the 12 November 2001 Resolution 28 of this
Court which declared the case closed and terminated upon the manifestation
of petitioner that he decided not to pursue his appeal and was thus
withdrawing the motion for extension of time to file a petition for review on
certiorari.
The better solution, however, is to let the parties argue the merits of the case
anew, and decide the case on the basis thereof. We can do this either by
remanding the case to a lower court, or by resolving the issues in this
disposition. The latter recourse is more appropriate, for three reasons: (1) all
the facts, arguments, and pleadings in support of the parties contentions are
now before us, with the parties advancing the very same contentions as
those in this Petition; (2) a remand to the Court of Appeals would entail
asking the latter to resolve the very same issues it had passed upon twice;
and (3) a remand to the Court of Appeals would only entail another
unnecessary delay in the termination of the case when the case is now ripe
for adjudication before us.
The merits of the case are the focus of petitioners third assignment of error
in the present petition. Petitioner claims that the Court of Appeals committed
a grave and reversible error when it upheld the resolution of the CSC which
allegedly effectively held "that petitioner may be removed from his position as
Undersecretary of the Department of National Defense without the
concomitant transfer to a position equivalent in rank or be removed then, be
floated perpetually, which is tantamount to a constructive dismissal, in
violation of his right to security of tenure as a career executive service
eligible."29
Petitioners arguments presuppose that he had been removed from his
position as Undersecretary of the DND. He, however, did not present any
evidence to that effect, whether in this Petition or in his earlier Petition for
Quo Warranto and Mandamus with the Court of Appeals. If he is implying
that he was removed from office by virtue of his account that he was
approached by persons close to President Joseph Estrada who asked him to
relinquish his post, which he did, then this Petition must fail, for, by his own
deliberate deed, he resigned from his position.
There are no special legal effects when a resignation is one of a courtesy
resignation. The mere fact that the President, by himself or through another,
requested for someones resignation does not give the President the
obligation to appoint such person to another position. A courtesy resignation
is just as effectual as any other resignation. There can be no implied
promises of another position just because the resignation was made out of
courtesy. Any express promise of another position, on the other hand, would
be void, because there can be no derogation of the discretion of the
appointing power,30 and because its object is outside the commerce of
man.31 As held by the Court of Appeals in its 30 August 2001 Decision:
In the first place, petitioner has not established by any quantum of certainty
the veracity of his claim that he was promised an equivalent position in the
government. Assuming, however, that such promise was true, petitioner, as a
ranking member of the bureaucracy, ought to have known that such promise
offers no assurance in law that the same would be complied with. The time-
honored rule is that public office is a public trust, and as such, the same is
governed by law, and cannot be made the subject of personal promises or
negotiations by private persons.32
WHEREFORE, the present Petition for Review on Certiorari is DENIED. No
costs.
SO ORDERED.
G.R. No. 172206 July 3, 2013
OFFICE OF THE OMBUDSMAN, PETITIONER,
vs.
ERNESTO M. DE CHAVEZ, ROLANDO L. LONTOC, SR., DR. PORFIRIO
C. LIGAYA, ROLANDO L. LONTOC, JR. AND GLORIA M. MENDOZA,
RESPONDENTS.
DECISION
PERALTA, J.:
This resolves the Petition for Review on Certiorari under Rule 45 of the Rules
of Court, praying that the Resolution1 of the Court of Appeals (CA), dated
April 7, 2006, be reversed and set aside.
The crux of the controversy is whether the Batangas State University Board
of Regents (BSU-BOR) could validly enforce the Office of the Ombudsman's
Joint Decision dated February 14, 2005 and Supplemental Resolution dated
July 12, 2005, finding herein respondents guilty of dishonesty and grave
misconduct and imposing the penalty of dismissal from service with its
accessory penalties, despite the fact that said Joint Decision and
Supplemental Resolution are pending appeal before the CA.
On August 18, 2005, the BSU-BOR received an Order from Deputy
Ombudsman Victor Fernandez directing the former to enforce the
aforementioned Office of the Ombudsman's Joint Decision and Supplemental
Resolution. Pursuant to said Order, the BSU-BOR issued Resolution No. 18,
series of 2005, dated August 22, 2005, resolving to implement the Order of
the Office of the Ombudsman. Thus, herein respondents filed a petition for
injunction with prayer for issuance of a temporary restraining order or
preliminary injunction before the Regional Trial Court of Batangas City,
Branch 4 (RTC), against the BSU-BOR. The gist of the petition before the
RTC is that the BSU-BOR should be enjoined from enforcing the
Ombudsman's Joint Decision and Supplemental Resolution because the
same are still on appeal and, therefore, are not yet final and executory.
On September 26, 2005, the RTC ordered the dismissal of herein
respondents' petition for injunction on the ground of lack of cause of action.
Respondents filed their notice of appeal and promptly filed a Motion for
Issuance of a Temporary Restraining Order and/or Injunction dated
December 8, 2005 with the CA. On February 17, 2006, the CA issued a
Resolution granting respondents' prayer for a temporary restraining order
enjoining the BSU-BOR from enforcing its Resolution No. 18, series of 2005.
Thereafter, on March 7, 2006, the Office of the Ombudsman filed a Motion to
Intervene and to Admit Attached Motion to Recall Temporary Restraining
Order, with the Motion to Recall Temporary Restraining Order attached
thereto. Respondents opposed said motion and then filed an Urgent Motion
for Issuance of a Writ of Preliminary Injunction. On April 7, 2006, the CA
issued the Resolution subject of the present petition, pertinent portions of
which are reproduced below:
At the outset, let it be emphasized that We are accepting and taking
cognizance of the pleadings lodged by the Office of the Ombudsman only in
so far as to afford it with ample opportunity to comment on and oppose
appellants' application for injunctive relief, but not for the purpose of allowing
the Ombudsman to formally and actively intervene in the instant appeal.
Basically, this is a regular appeal impugning the disposition of the trial court,
the pivotal issue of which is only for the appellants and the Board of Regents
of BSU to settle and contest, and which may be completely adjudicated upon
without the active participation of the Office of the Ombudsman.
xxxx
In the final reckoning, We stand firm by Our conclusion that the
administrative penalty of dismissal from the service imposed upon herein
appellants is not yet final and immediately executory in nature in view of the
appeal interposed therefrom by the appellants before this Court, and this
fact, in the end, impelled Us to act with favor upon appellants' prayer for
injunctive relief to stay the execution of the impugned Resolution of the
Board of Regents of BSU.
Wherefore, premises considered, the Ombudsman's Motion to Recall the
TRO is denied. On the other hand, appellants' Urgent Motion for Issuance of
a Writ of Preliminary Injunction is granted. Accordingly, let a Writ of
Preliminary Injunction be issued, as it is hereby issued, conditioned upon the
posting by the appellants of an Injunction Bond in the sum of Php10,000.00,
enjoining the Board of Regents of BSU, and all other persons and agents
acting under its command authority, pending the complete resolution of this
appeal, from effecting the enforcement and implementation of its Resolution
No. 18, Series of 2005 issued pursuant to the July 12, 2005 Supplemental
Resolution of the Ombudsman, Central Office.
SO ORDERED.2
Petitioners then filed a petition for review on certiorari before this Court,
assailing the aforequoted CA Resolution dated April 7, 2006, alleging that:
I.
WITH DUE RESPECT, THE HONORABLE COURT OF APPEALS
DISREGARDED THE WELL-ENTRENCHED RULE AGAINST FORUM
SHOPPING WHEN, INSTEAD OF OUTRIGHTLY DISMISSING
RESPONDENTS' PETITION, THE SAID COURT TOOK COGNIZANCE OF
THE PETITION AND SUBSEQUENTLY ISSUED ITS RESOLUTIONS
DATED 17 FEBRUARY 2006 AND 7 APRIL 2006, RESPECTIVELY;
II.
WITH DUE RESPECT, THE HONORABLE COURT OF APPEALS
SERIOUSLY OVERLOOKED THE PROVISIONS OF RULE 58 OF THE
1997 REVISED RULES OF CIVIL PROCEDURE WHEN IT TOOK
COGNIZANCE OF RESPONDENTS' UNVERIFIED PETITION AND
SUBSEQUENTLY ISSUED ITS 17 FEBRUARY 2006 AND 7 APRIL 2006
RESOLUTIONS;
III.
THE ISSUANCE BY THE HONORABLE COURT OF APPEALS OF THE 17
FEBRUARY 2006 AND 7 APRIL 2006 RESOLUTIONS ENJOINING THE
IMPLEMENTATION OF BOARD RESOLUTION NO. 18, SERIES OF 2005
ISSUED BY THE BOARD OF REGENTS OF BATANGAS STATE
UNIVERSITY UNDULY DISREGARDS THE ESTABLISHED RULES
RELATIVE TO IMPLEMENTATION OF OMBUDSMAN DECISION PENDING
APPEAL, CONSIDERING THAT:
BOARD RESOLUTION NO. 18, SERIES OF 2005 WAS ISSUED BY THE
BOARD OF REGENTS OF THE BATANGAS STATE UNIVERSITY
PURSUANT TO THE JOINT DECISION AND SUPPLEMENTAL
RESOLUTION ISSUED BY THE OFFICE OF THE OMBUDSMAN.
UNDER THE OMBUDSMAN RULES OF PROCEDURE, AN APPEAL DOES
NOT STAY THE EXECUTION OF DECISIONS, RESOLUTIONS OR
ORDERS ISSUED BY THE OFFICE OF THE OMBUDSMAN.
IV.
RESPONDENTS ARE NOT ENTITLED TO THE INJUNCTIVE RELIEF
PRAYED FOR IN THEIR UNVERIFIED MOTION FILED BEFORE THE
HONORABLE COURT OF APPEALS.3
Controverting petitioner's claims, respondents in turn allege that:
1. PETITIONER (OMBUDSMAN) HAS NO LEGAL PERSONALITY
TO INSTITUTE THE INSTANT PETITION INASMUCH AS IT IS NOT
A PARTY TO THE APPEALED CASE PENDING BEFORE THE
COURT OF APPEALS;
2. ASSUMING THAT THE PETITIONER HAS THE LEGAL
PERSONALITY TO INTERVENE IN THE APPEALED CASE
BEFORE THE COURT OF APPEALS, THE INSTANT PETITION IS
NOT THE PROPER RECOURSE AVAILABLE TO THE
PETITIONER; AND
3. THE COURT OF APPEALS DID NOT COMMIT ANY GRAVE
ABUSE OF DISCRETION IN ISSUING THE ASSAILED
RESOLUTIONS.4
At the outset, the Court must clarify that a petition for review on certiorari is
not the proper remedy to question the CA Resolution dated April 7, 2006
granting the Writ of Preliminary Injunction and denying petitioner's motion for
intervention. Said Resolution did not completely dispose of the case on the
merits, hence, it is merely an interlocutory order. As such, Section 1, Rule 41
of the Rules of Court provides that no appeal may be taken therefrom.
However, where the assailed interlocutory order is patently erroneous and
the remedy of appeal would not afford adequate and expeditious relief, the
Court allows certiorari as a mode of redress.5
In this case, the discussion below will show that the assailed Resolution is
patently erroneous, and that granting the Office of the Ombudsman the
opportunity to be heard in the case pending before the lower court is of
primordial importance. Thus, the Court resolves to relax the application of
procedural rules by treating the petition as one for certiorari under Rule 65 of
the Rules of Court.
The CA should have allowed the Office of the Ombudsman to intervene in
the appeal pending with the lower court. The wisdom of this course of action
has been exhaustively explained in Office of the Ombudsman v.
Samaniego.6 In said case, the CA also issued a Resolution denying the
Office of the Ombudsman's motion to intervene. In resolving the issue of
whether the Office of the Ombudsman has legal interest to intervene in the
appeal of its Decision, the Court expounded, thus:
x x x the Ombudsman is in a league of its own. It is different from other
investigatory and prosecutory agencies of the government because the
people under its jurisdiction are public officials who, through pressure and
influence, can quash, delay or dismiss investigations directed against them.
Its function is critical because public interest (in the accountability of public
officers and employees) is at stake.
xxxx
The Office of the Obudsman sufficiently alleged its legal interest in the
subject matter of litigation. Paragraph 2 of its motion for intervention and to
admit the attached motion to recall writ of preliminary injunction averred:
"2. As a competent disciplining body, the Ombudsman has the right to seek
redress on the apparently erroneous issuance by this Honorable Court of the
Writ of Preliminary Injunction enjoining the implementation of the
Ombudsman's Joint Decision x x x."
In asserting that it was a "competent disciplining body," the Office of the
Ombudsman correctly summed up its legal interest in the matter in
controversy. In support of its claim, it invoked its role as a constitutionally
mandated "protector of the people," a disciplinary authority vested with quasi-
judicial function to resolve administrative disciplinary cases against public
officials. To hold otherwise would have been tantamount to abdicating its
salutary functions as the guardian of public trust and accountability.
Moreover, the Office of the Ombudsman had a clear legal interest in the
inquiry into whether respondent committed acts constituting grave
misconduct, an offense punishable under the Uniform Rules in Administrative
Cases in the Civil Service. It was in keeping with its duty to act as a
champion of the people and preserve the integrity of public service that
petitioner had to be given the opportunity to act fully within the parameters of
its authority.
It is true that under our rule on intervention, the allowance or disallowance of
a motion to intervene is left to the sound discretion of the court after a
consideration of the appropriate circumstances. However, such discretion is
not without limitations. One of the limits in the exercise of such discretion is
that it must not be exercised in disregard of law and the Constitution. The CA
should have considered the nature of the Ombudsman's powers as provided
in the Constitution and RA 6770.
xxxx
Both the CA and respondent likened the Office of the Ombudsman to a judge
whose decision was in question. This was a tad too simplistic (or perhaps
even rather disdainful) of the power, duties and functions of the Office of the
Ombudsman. The Office of the Ombudsman cannot be detached,
disinterested and neutral specially when defending its decisions. Moreover,
in administrative cases against government personnel, the offense is
committed against the government and public interest. What further proof of
a direct constitutional and legal interest in the accountability of public officers
is necessary?7
Here, since its power to ensure enforcement of its Joint Decision and
Supplemental Resolution is in danger of being impaired, the Office of the
Ombudsman had a clear legal interest in defending its right to have its
judgment carried out. The CA patently erred in denying the Office of the
Ombudsman's motion for intervention.
A discussion of the next issue of the propriety of the issuance of a writ of
preliminary injunction in this case would necessarily touch on the very merits
of the case, i.e., whether the concerned government agencies and
instrumentalities may execute the Office of the Ombudsman's order to
dismiss a government employee from service even if the Ombudsman's
decision is pending appeal. It would also be a great waste of time to remand
the case back to the CA, considering that the entire records of the
proceedings have already been elevated to this Court. Thus, at this point, the
Court shall fully adjudicate the main issue in the case.
Note that for a writ of preliminary injunction to issue, the following essential
requisites must concur, to wit: (1) that the invasion of the right is material and
substantial; (2) that the right of complainant is clear and unmistakable; and,
(3) that there is an urgent and paramount necessity for the writ to prevent
serious damage.8 In the present case, the right of respondents cannot be
said to be clear and unmistakable, because the prevailing jurisprudence is
that the penalty of dismissal from the service meted on government
employees or officials is immediately executory in accordance with the valid
rule of execution pending appeal uniformly observed in administrative
disciplinary cases. In Facura v. Court of Appeals,9 the Court fully threshed
out this matter, thus:
The issue of whether or not an appeal of the Ombudsman decision in an
administrative case carries with it the immediate suspension of the imposed
penalty has been laid to rest in the recent resolution of the case of
Ombudsman v. Samaniego, where this Court held that the decision of the
Ombudsman is immediately executory pending appeal and may not be
stayed by the filing of an appeal or the issuance of an injunctive writ, to wit:
"Section 7, Rule III of the Rules of Procedure of the Office of the
Ombudsman, as amended by Administrative Order No. 17 dated September
15, 2003, provides:
SEC. 7. Finality and execution of decision. - Where the respondent is
absolved of the charge, and in case of conviction where the penalty imposed
is public censure or reprimand, suspension of not more than one month, or a
fine equivalent to one month salary, the decision shall be final, executory and
unappealable. In all other cases, the decision may be appealed to the Court
of Appeals on a verified petition for review under the requirements and
conditions set forth in Rule 43 of the Rules of Court, within fifteen (15) days
from receipt of the written Notice of the Decision or Order denying the motion
for reconsideration.
An appeal shall not stop the decision from being executory. In case the
penalty is suspension or removal and the respondent wins such appeal, he
shall be considered as having been under preventive suspension and shall
be paid the salary and such other emoluments that he did not receive by
reason of the suspension or removal.
A decision of the Office of the Ombudsman in administrative cases shall be
executed as a matter of course.1wphi1 The Office of the Ombudsman shall
ensure that the decision shall be strictly enforced and properly implemented.
The refusal or failure by any officer without just cause to comply with an
order of the Office of the Ombudsman to remove, suspend, demote, fine, or
censure shall be a ground for disciplinary action against such officer.
[Emphases supplied]
The Ombudsman's decision imposing the penalty of suspension for one year
is immediately executory pending appeal. It cannot be stayed by the mere
filing of an appeal to the CA. This rule is similar to that provided under
Section 47 of the Uniform Rules on Administrative Cases in the Civil Service.
In the case of In the Matter to Declare in Contempt of Court Hon. Simeon A.
Datumanong, Secretary of the DPWH, we held:
The Rules of Procedure of the Office of the Ombudsman are clearly
procedural and no vested right of the petitioner is violated as he is
considered preventively suspended while his case is on appeal. Moreover, in
the event he wins on appeal, he shall be paid the salary and such other
emoluments that he did not receive by reason of the suspension or removal.
Besides, there is no such thing as a vested interest in an office, or even an
absolute right to hold office. Excepting constitutional offices which provide for
special immunity as regards salary and tenure, no one can be said to have
any vested right in an office.
xxxx
x x x Here, Section 7, Rule III of the Rules of Procedure of the Office of the
Ombudsman, as amended, is categorical, an appeal shall not stop the
decision from being executory.
Moreover, Section 13 (8), Article XI of the Constitution authorizes the Office
of the Ombudsman to promulgate its own rules of procedure. In this
connection, Sections 18 and 27 of the Ombudsman Act of 1989 also provide
that the Office of the Ombudsman has the power to "promulgate its rules of
procedure for the effective exercise or performance of its powers, functions
and duties" and to amend or modify its rules as the interest of justice may
require. For the CA to issue a preliminary injunction that will stay the penalty
imposed by the Ombudsman in an administrative case would be to encroach
on the rule-making powers of the Office of the Ombudsman under the
Constitution and RA 6770 as the injunctive writ will render nugatory the
provisions of Section 7, Rule III of the Rules of Procedure of the Office of the
Ombudsman.
Clearly, Section 7, Rule III of the Rules of Procedure of the Office of the
Ombudsman supersedes the discretion given to the CA in Section 12, Rule
43 of the Rules of Court when a decision of the Ombudsman in an
administrative case is appealed to the CA. The provision in the Rules of
Procedure of the Office of the Ombudsman that a decision is immediately
executory is a special rule that prevails over the provisions of the Rules of
Court. Specialis derogat generali. When two rules apply to a particular case,
that which was specially designed for the said case must prevail over the
other. [Emphases supplied]
Thus, Section 7, Rule III of the Rules of Procedure of the Office of the
Ombudsman, as amended by Administrative Order (A.O.) No. 17, is
categorical in providing that an appeal shall not stop an Ombudsman
decision from being executory. This rule applies to the appealable decisions
of the Ombudsman, namely, those where the penalty imposed is other than
public censure or reprimand, or a penalty of suspension of more than one
month, or a fine equivalent to more than one month's salary. Hence, the
dismissal of De Jesus and Parungao from the government service is
immediately executory pending appeal.
The aforementioned Section 7 is also clear in providing that in case the
penalty is removal and the respondent wins his appeal, he shall be
considered as having been under preventive suspension and shall be paid
the salary and such other emoluments that he did not receive by reason of
the removal. As explained above, there is no such thing as a vested interest
in an office, or an absolute right to hold office, except constitutional offices
with special provisions on salary and tenure. The Rules of Procedure of the
Ombudsman being procedural, no vested right of De Jesus and Parungao
would be violated as they would be considered under preventive suspension,
and entitled to the salary and emoluments they did not receive in the event
that they would win their appeal.

The ratiocination above also clarifies the application of Rule 43 of the Rules
of Court in relation to Section 7 of the Rules of Procedure of the Office of the
Ombudsman. The CA, even on terms it may deem just, has no discretion to
stay a decision of the Ombudsman, as such procedural matter is governed
specifically by the Rules of Procedure of the Office of the Ombudsman.

The CA's issuance of a preliminary mandatory injunction, staying the penalty

of dismissal imposed by the Ombudsman in this administrative case, is thus
an encroachment on the rule-making powers of the Ombudsman under
Section 13 (8), Article XI of the Constitution, and Sections 18 and 27 of R.A.
No. 6770, which grants the Office of the Ombudsman the authority to
promulgate its own rules of procedure. The issuance of an injunctive writ
renders nugatory the provisions of Section 7, Rule III of the Rules of
Procedure of the Office of the Ombudsman.10

From the foregoing elaboration, there can be no cavil that respondents do

not have any right to a stay of the Ombudsman's decision dismissing them
from service. Perforce, the BSU-BOR acted properly in issuing Resolution
No. 18, series of 2005, dated August 22, 2005, pursuant to the order of the
Ombudsman, as its legally-mandated duty. The CA's Resolution granting
respondents' prayer for a writ of preliminary injunction is patently erroneous.

WHEREFORE, the petition is GRANTED. The Resolution of the Court of

Appeals, dated April 7, 2006, is SET ASIDE. The Order of the Regional Trial
Court of Batangas City, Branch 4, dated September 26, 2005 in Civil Case
No. 7775, is REINSTATED.

SO ORDERED.
G.R. No. 180418 August 28, 2013
REPUBLIC OF THE PHILIPPINES, PETITIONER,
vs.
LUZ REYES-BAKUNAWA, MANUEL BAKUNAWA, JR., MANUEL
BAKUNAWA III, FERDINAND E. MARCOS AND IMELDA R. MARCOS,
RESPONDENTS.
DECISION
BERSAMIN, J.:
Assets or properties, to be considered as ill-gotten wealth, must be shown to
have originated from the Government itself, and should have been taken by
former President Marcos, the members of his immediate family, relatives,
close subordinates and close associates by illegal means. That one served
as a government official or employee during the Marcos administration did
not immediately make her a close subordinate or close associate of former
President Marcos.1
The Case
The Republic appeals the adverse decision rendered on April 10, 2002,2 and
the resolution issued on November 8, 2007,3 whereby the Sandiganbayan
respectively dismissed the complaint for reconveyance, reversion,
accounting, restitution and damages filed against respondents in Civil Case
No. 0023, and denied the Republics motion for reconsideration.
Antecedents
Civil Case No. 0023 is an action for reconveyance, reversion, accounting,
restitution and damages brought by the Republic against respondents Luz
Reyes-Bakunawa, Manuel Bakunawa, Jr., Manuel Bakunawa III, President
Marcos and First Lady Imelda R. Marcos for having allegedly acquired and
accumulated ill-gotten wealth consisting of funds and other property "in
unlawful concert with one another" and "in flagrant breach of trust and of their
fiduciary obligations as public officers, with grave abuse of right and power
and in brazen violation of the Constitution and laws of the Republic of the
Philippines, thus resulting in their unjust enrichment." 4
The complaint alleged that respondent Luz Reyes-Bakunawa (Luz
Bakunawa) had served as Imelda Marcos Social Secretary during the
Marcos administration; that it was during that period of her incumbency in
that position that Luz Bakunawa and her husband Manuel Bakunawa had
acquired assets, funds and other property grossly and manifestly
disproportionate to her salaries and their other lawful income;5 and that Luz
Bakunawa, "by herself and/or in unlawful concert with Defendants Ferdinand
E. Marcos and Imelda R. Marcos, taking undue advantage of her position,
influence and connection with the latter Defendant spouses, for their benefit
and unjust enrichment and in order to prevent disclosure and recovery of
assets illegally obtained, engaged in devices, schemes and stratagems,"6
particularly:
1) acted as dummies, nominees, and/or agents of the Marcos
spouses and, with the active collaboration, knowledge and willing
participation of the other defendants, established several
corporations engaged in a wide range of economic activities, such as
construction and cattle ranching;
2) secured favorable contracts with the Department of Public Works
and Communications for the construction of government projects
through grossly undercapitalized corporations and without complying
with such usual requirements as public bidding, notice and
publication of contractors;
3) unlawfully acquired heads of cattle from the government dispersal
program and raised them on ranch lands encroaching on forest
zones;
4) unlawfully encroached upon a mangrove-forested section in
Masbate, Masbate and converted it into a fishpond;
5) unlawfully amassed funds by obtaining huge credit lines from
government financial institutions, and incorporating into their
contracts a cost-escalation adjustment provision to justify collection
of grossly arbitrary and unconscionable amounts unsupported by
evidence of increase in prices;
6) unlawfully imported hundreds of brand-new units of heavy
equipment without paying customs duties and other allied taxes
amounting to millions of pesos, by falsely representing said heavy
equipment to be for official government use and selling them at very
low prices to avoid paying the required taxes.7
The Republic prayed for: (a) the reconveyance to itself of all funds and other
property impressed with constructive trust, as well as funds and other
property acquired by respondents abuse of right and power and through
unjust enrichment, plus interests; (b) accounting of all beneficial interests in
funds, properties and assets in excess of their unlawful earnings; and (c)
payment of actual damages to be proved during the trial, moral damages of
50,000,000,000.00, temperate, nominal and exemplary damages,
attorneys fees, litigation expenses and treble judicial costs. 8
In their amended answer, the Bakunawas alleged that Luz Bakunawa was
never the Social Secretary of Imelda Marcos, but only an employee in the
office of the Social Secretary; that the properties acquired while Luz
Bakunawa was employed in the Government were purchased with honestly
earned money and their acquisition was well within their legitimate income;
that their family owned and controlled five closed family corporations,
namely: (1) Hi-Tri Development Corporation; (2) 7-R Development
Corporation; (3) 7-R Heavy Equipment, Inc.; (4) 7-R Sales Company, Inc.;
and (5) 7-R Ranch, Inc.; that their public works contracts were awarded to
them in accordance with law; that their acquisition of the heads of cattle were
legal;9 and that they did not commit any breach of trust while in public office,
and did not possess illegally acquired funds that rendered them liable under
constructive trust in favor of the Republic.10
During the pre-trial on August 26, 1999, the Bakunawas admitted that: (a) the
properties enumerated in Annex A of the complaint11 belonged to or were
connected to them, except three corporations, namely:7-R International
Trading, 7-R Enterprise, Inc., and 7-R Group of Companies; and (b) two
parcels of land that belonged to one of their children.12
Also during the pre-trial, the parties agreed on the following statement of the
issues, to wit:
[t]he fundamental issue in this case is whether or not defendant Luz
Bakunawa, considering her position in Malacaang during the incumbency of
President Ferdinand E. Marcos from 1970 up to 1986, occupied a
confidential position in Malacaang, and was able to obtain contracts, run
businesses and acquire real properties as enumerated in the Complaint,
using her office and the influence of either or both of the [s]pouses Ferdinand
and Imelda Marcos. The parties agreed that it is the use of the influence of
the Spouses Marcos that constitutes the essence of the case, and not the
failure to report the Statement of Assets and Liabilities or any other
impropriety in the acquisition of the properties herein, this case having been
filed under the authority given to the Presidential Commission on Good
Government under Executive Orders No. 1,2, 14 and 14-a.13
After the Republic rested its case, respondents filed their motion to dismiss, 14
insisting that the Republic "has failed to establish even prima facie, its case
and/or charges against them."15
Ruling of the Sandiganbayan
On April 10, 2002, the Sandiganbayan rendered its decision in favor of
respondents, to wit:16
xxxx
As the evidence stands, neither the presence of the link with the Marcoses,
nor the irrefutability of the evidence against the Bakunawas for their misuse
of that connection exists to justify the instant action by the PCGG.
In view of all the above, this Court is constrained to grant the Motion to
Dismiss, as it hereby dismisses, the Complaint of the plaintiff for its failure to
prove the essential allegations thereof.
The writs of sequestration issued and in force against the properties of the
Bakunawas as enumerated in Annex A of the Complaint (page 24 and p. 34,
Vol. I, Record) are lifted, set aside and declared of no further force and
effect.
SO ORDERED.
The Sandiganbayan justified its decision in the following manner:
xxxx
Many of the plaintiffs allegations in its specific averments (Article V) in the
complaint are alluded to in the evidence in a general fashion: engaging in
cattle ranching and construction [para. 12 (a)], entering into public works
contracts [para.12 (b)], acquisition of mangrove areas [para. 12 (c)]. Nothing
exists in the record, however, with respect to undercapitalization of the
corporation, non-compliance with bidding requirements, encroachment of
ranches into forest zones, huge credit lines, unjustified claims of cost
escalation adjustment, and importation of heavy equipment.
Properties have been shown in the name of the spouses Bakunawa or either
of them; testimonies have been rendered about eviction, official documents
presented with respect to public works contracts, and finally, a Statement of
Assets and Liabilities for the year 1985. Indeed, to hear some of the
witnesses, acts of oppression appear to have been committed if not by the
wife then by the husband Manuel Bakunawa. There is no indication however,
that the acts of oppression involved the improper use of influence on the part
of the defendant Luz Bakunawa by reason of her having been employed in
the office of the Social Secretary of Imelda Marcos when the latter was the
First Lady.
 xxxx
An examination of the testimonial evidence for the Plaintiff, as summarized in
the first part of this decision, shows its concentration in the alleged
dispossession of some landowners of their occupied land in the province of
Masbate by the defendants Bakunawa and the allegedly (sic) inaction by the
Bureau of Forestry and the police agencies thereon. Thus, the almost
uniform allegation of witnesses is that they were dispossessed of pasture
lands which they believed they were entitled to possess. There were
documents presented to prove that, indeed, the witnesses had claims to
these pieces of property or had occupied them and had introduced
improvements thereon.
The tenor of the testimony of the said witnesses is that while there was no
force directly applied in the dispossession of their properties, their lands,
however, were fenced in, and occupied by, other people, allegedly the
Bakunawas and secured by armed and uniformed men.
There is likewise the contention of the plaintiffs witnesses that they did not
know who these men were, although it has been said that one or two of the
men who helped in fencing off these properties were employees of the
Bakunawas.
What is clear is that with the evidence thus far, the Bakunawas, or more
specifically, Manuel Bakunawa, ignored the Bureau of Forestry summons,
and caused the unceremonious exclusion of people who had apparently
occupied rather large tracts of land under permits for the Bureau or those
with pending applications.
There also seems to be evidence that defendant Luz Bakunawa did quite a
bit of work in her capacity as a member of the staff of the Social Secretary of
Imelda Marcos. While the influence of Luz Bakunawa may be assumed or
conjectured, there has been no evidence which would categorically show that
the position of defendant Luz Bakunawa in Malacaang "in concert with the
spouses Marcos" or either of them was the explanation for the absence of
the law enforcement officers or the inaction of the administrative officers of
the government.
xxxx
The influence may be assumed and in common parlance, it might be
reasonably made. But to conclude that there was abuse of office by Luz
Bakunawa or her utilization of the influence of her office or of the spouses
Marcos cannot be assumed or stated in any certainty.
And since, as aforesaid, the action herein is confiscatory in character,
assumptions will not do to obtain judgment against the defendants
Bakunawa.17
The Sandiganbayan ruled that in civil suits initiated by the Presidential
Commission on Good Government (PCGG) for the recovery of illegally
acquired property pursuant to Republic Act No. 1379,18 the Republic must
show not only that defendant was a subordinate of the Marcos spouses or of
either of them, but also that the relationship was similar to that of an
immediate member of the Marcos family or a dummy of the Marcoses.19 It
concluded that no proof established the link between the alleged acts of the
Bakunawas and those of the Marcoses, or even the proximity of Luz
Bakunawa as a Marcos relative or Marcos dummy.
The Republic sought the reconsideration of the decision, arguing that the
Sandiganbayan erred in holding that it did not show the Bakunawas link with
the Marcoses, and in ruling that it did not prove that the Bakunawas had
abused their connections or close association with the Marcoses.20
On November 8, 2007, the Sandiganbayan denied the Republics motion for
reconsideration,21 reiterating its ruling that the Republic did not discharge its
burden of proving the close links between the Bakunawas and the Marcoses,
and of proving how the Bakunawas had abused said links, assuming that the
links existed.
Hence, this appeal.
Issues
The Republic ascribes the following errors, to wit:
I.
THE QUANTUM OF PROOF REQUIRED TO PROVE
PETITIONERS CASE AGAINST THE BAKUNAWAS IS MERE
PREPONDERANCE OF EVIDENCE.
II.
THE LINK BETWEEN AND/OR AMONG THE BAKUNAWAS AND
THE MARCOSES WAS SATISFACTORILY ESTABLISHED BY
PETITIONER.
III.
 PETITIONER WAS ABLE TO ESTABLISH THAT THE
BAKUNAWAS AMASSED ASSETS, FUNDS AND PROPERTIES
GROSSLY AND MANIFESTLY DISPROPORTIONATE TO THEIR
SALARIES AND OTHER LAWFUL INCOME BECAUSE OF THEIR
POSITION IN THE GOVERNMENT AND/OR CLOSE
ASSOCIATION AND CONNECTION WITH THE MARCOSES TO
THE PREJUDICE OF PETITIONER AND THE FILIPINO PEOPLE.22
In their comment,23 respondents mainly submit that the Republic failed to
present a justiciable issue to warrant the reversal of the Sandiganbayans
decision; and that the April 10, 2002 decision already become final and could
no longer be reviewed and modified because of the belated filing of the
petition for review.
On her part, First Lady Marcos opted not to file her comment.24
Ruling
The appeal lacks merit.
1.
Appeal of the Republic was timely
The Bakunawas contend that the April 10, 2002 decision already became
final because of the Republics failure to file the petition for review on time.
We cannot sustain the contention.
The Republic had until November 24, 2007 within which to file the petition for
review. It filed a motion seeking an extension of 30 days of its period to file,
or until December 24, 2007. Although it did not file the petition within the
requested extension period, the Court directed it on June 30, 2008 to file the
petition for review within 15 days from notice. Considering that it received the
resolution of June 30, 2008 on August 11, 2008,25 its filing of the petition for
review on August 26, 2008 was timely.
2.
Preponderance of evidence is required in actions brought to recover ill-gotten
wealth
In its decision of April 10, 2002, the Sandiganbayan stated as follows:
Considering the confiscatory character of proceedings described in E.O. No.
14 in actions for recovery of alleged unlawfully acquired property such as the
instant case, evidence must be substantial, if not beyond reasonable doubt,
akin to the actions for forfeiture under Republic Act. No. 1379; this,
notwithstanding the statements in Sec. 3 of the Executive Order which states
the adequacy of mere preponderance of evidence.26
The Republic argues that the Sandiganbayan thereby erred in seemingly
requiring a degree of proof greater than that required by Executive Order
(E.O.) No. 14-A.27 This was also its submission in the motion for
reconsideration vis--vis the decision of April 10, 2002.
In denying the Republics motion for reconsideration through the November
8, 2007 resolution, the Sandiganbayan agreed with the Republics
submission to the effect that preponderance of evidence was all that was
required for this case. However, the Sandiganbayan pointed out that even on
that basis the Republic still did not satisfy its quantum of proof because the
facts it established were not sufficient to prove its case against
respondents.28
We uphold the Sandiganbayan.
We first clarify that the Republic correctly submits that only a preponderance
of evidence was needed to prove its demand for reconveyance or recovery of
ill-gotten wealth. That is quite clear from Section 1 of E.O. No. 14-A, which
provides:
Section 1. Section 3 of Executive Order No. 14 dated May 7, 1986 is hereby
amended to read as follows:
Sec. 3. The civil suits to recover unlawfully acquired property under Republic
Act No. 1379 or for restitution, reparation of damages, or indemnification for
consequential and other damages or any other civil actions under the Civil
Code or other existing laws filed with the Sandiganbayan against Ferdinand
E. Marcos, Imelda R. Marcos, members of their immediate family, close
relatives, subordinates, close and/or business associates, dummies, agents
and nominees, may proceed independently of any criminal proceedings and
may be proved by a preponderance of evidence.
By preponderance of evidence is meant that the evidence adduced by one
side is, as a whole, superior to that of the other side. Essentially,
preponderance of evidence refers to the comparative weight of the evidence
presented by the opposing parties. As such, it has been defined as "the
weight, credit, and value of the aggregate evidence on either side," and is
usually considered to be synonymous with the term greater weight of the
evidence or greater weight of the credible evidence. It is proof that is more
convincing to the court as worthy of belief than that which is offered in
opposition thereto.29
Here, the Bakunawas filed a motion to dismiss, by which they specifically
demurred to the evidence adduced against them. A demurrer to evidence is
an objection by one of the parties in an action to the effect that the evidence
that his adversary produced, whether true or not, is insufficient in point of law
to make out a case or to sustain the issue. The demurring party thereby
challenges the sufficiency of the whole evidence to sustain a judgment. The
court, in passing upon the sufficiency of the evidence, is required merely to
ascertain whether there is competent or sufficient evidence to sustain the
indictment or claim, or to support a verdict of guilt or liability.30
Under the rule on preponderance of evidence, the court is instructed to find
for and to dismiss the case against the defendant should the scales hang in
equipoise and there is nothing in the evidence that tilts the scales to one or
the other side. The plaintiff who had the burden of proof has failed to
establish its case, and the parties are no better off than before they
proceeded upon their litigation. In that situation, the court should leave the
parties as they are.31
Moreover, although the evidence of the plaintiff may be stronger than that of
the defendant, there is no preponderance of evidence on the plaintiffs side if
its evidence alone is insufficient to establish its cause of action. 32 Similarly,
when only one side is able to present its evidence, and the other side demurs
to the evidence, a preponderance of evidence can result only if the plaintiffs
evidence is sufficient to establish the cause of action. For this purpose, the
sheer volume of the evidence presented by one party cannot tip the scales in
its favor. Quality, not quantity, is the primordial consideration in evaluating
evidence.
3.
The evidence of the Republic did not preponderantly establish the ill-gotten
nature of the Bakunawas wealth
The decisive query is whether the Republic preponderantly showed that the
Bakunawas had acquired ill-gotten wealth during Luz Bakunawas
employment during the Marcos administration.
In Republic v. Sandiganbayan (First Division), decided on April 12, 2011, 33
the Court settled not only the meaning of ill-gotten wealth but also who were
the persons liable to illegally acquire or amass such wealth, viz:
xxxx
II
The Concept and Genesis of Ill-Gotten Wealth in the Philippine Setting
A brief review of the Philippine law and jurisprudence pertinent to ill-gotten
wealth should furnish an illuminating backdrop for further discussion.
In the immediate aftermath of the peaceful 1986 EDSA Revolution, the
administration of President Corazon C. Aquino saw to it, among others, that
rules defining the authority of the government and its instrumentalities were
promptly put in place. It is significant to point out, however, that the
administration likewise defined the limitations of the authority.
The first official issuance of President Aquino, which was made on February
28, 1986, or just two days after the EDSA Revolution, was Executive Order
(E.O.) No. 1, which created the Presidential Commission on Good
Government (PCGG). Ostensibly, E.O. No. 1 was the first issuance in light of
the EDSA Revolution having come about mainly to address the pillage of the
nations wealth by President Marcos, his family, and cronies.
E.O. No. 1 contained only two WHEREAS Clauses, to wit:
WHEREAS, vast resources of the government have been amassed by
former President Ferdinand E. Marcos, his immediate family, relatives, and
close associates both here and abroad;
WHEREAS, there is an urgent need to recover all ill-gotten wealth;
Paragraph (4) of E.O. No. 234 further required that the wealth, to be ill-gotten,
must be "acquired by them through or as a result of improper or illegal use of
or the conversion of funds belonging to the Government of the Philippines or
any of its branches, instrumentalities, enterprises, banks or financial
institutions, or by taking undue advantage of their official position, authority,
relationship, connection or influence to unjustly enrich themselves at the
expense and to the grave damage and prejudice of the Filipino people and
the Republic of the Philippines."
Although E.O. No. 1 and the other issuances dealing with ill-gotten wealth
(i.e., E.O. No. 2, E.O. No. 14, and E.O. No. 14-A) only identified the subject
matter of ill-gotten wealth and the persons who could amass ill-gotten wealth
and did not include an explicit definition of ill-gotten wealth, we can still
discern the meaning and concept of ill-gotten wealth from the WHEREAS
Clauses themselves of E.O. No. 1, in that ill-gotten wealth consisted of the
"vast resources of the government" amassed by "former President Ferdinand
E. Marcos, his immediate family, relatives and close associates both here
and abroad." It is clear, therefore, that ill-gotten wealth would not include all
the properties of President Marcos, his immediate family, relatives, and close
associates but only the part that originated from the "vast resources of the
government."
In time and unavoidably, the Supreme Court elaborated on the meaning and
concept of ill-gotten wealth. In Bataan Shipyard & Engineering Co., Inc. v.
Presidential Commission on Good Government, or BASECO, for the sake of
brevity, the Court held that:
x x x until it can be determined, through appropriate judicial proceedings,
whether the property was in truth "ill-gotten," i.e., acquired through or as a
result of improper or illegal use of or the conversion of funds belonging to the
Government or any of its branches, instrumentalities, enterprises, banks or
financial institutions, or by taking undue advantage of official position,
authority, relationship, connection or influence, resulting in unjust enrichment
of the ostensible owner and grave damage and prejudice to the State. And
this, too, is the sense in which the term is commonly understood in other
jurisdictions.
The BASECO definition of ill-gotten wealth was reiterated in Presidential
Commission on Good Government v. Lucio C. Tan, where the Court said:
On this point, we find it relevant to define "ill-gotten wealth." In Bataan
Shipyard and Engineering Co., Inc., this Court described "ill-gotten wealth"
as follows:
"Ill-gotten wealth is that acquired through or as a result of improper or illegal
use of or the conversion of funds belonging to the Government or any of its
branches, instrumentalities, enterprises, banks or financial institutions, or by
taking undue advantage of official position, authority, relationship, connection
or influence, resulting in unjust enrichment of the ostensible owner and grave
damage and prejudice to the State. And this, too, is the sense in which the
term is commonly understood in other jurisdiction."
Concerning respondents shares of stock here, there is no evidence
presented by petitioner that they belong to the Government of the Philippines
or any of its branches, instrumentalities, enterprises, banks or financial
institutions. Nor is there evidence that respondents, taking undue advantage
of their connections or relationship with former President Marcos or his
family, relatives and close associates, were able to acquire those shares of
stock.
Incidentally, in its 1998 ruling in Chavez v. Presidential Commission on Good
Government, the Court rendered an identical definition of ill-gotten wealth,
viz:
x x x. We may also add that ill-gotten wealth, by its very nature, assumes a
public character. Based on the aforementioned Executive Orders, ill-gotten
wealth refers to assets and properties purportedly acquired, directly or
indirectly, by former President Marcos, his immediate family, relatives and
close associates through or as a result of their improper or illegal use of
government funds or properties; or their having taken undue advantage of
their public office; or their use of powers, influence or relationships, "resulting
in their unjust enrichment and causing grave damage and prejudice to the
Filipino people and the Republic of the Philippines." Clearly, the assets and
properties referred to supposedly originated from the government itself. To all
intents and purposes, therefore, they belong to the people. As such, upon
reconveyance they will be returned to the public treasury, subject only to the
satisfaction of positive claims of certain persons as may be adjudged by
competent courts. Another declared overriding consideration for the
expeditious recovery of ill-gotten wealth is that it may be used for national
economic recovery.
All these judicial pronouncements demand two concurring elements to be
present before assets or properties were considered as ill-gotten wealth,
namely: (a) they must have "originated from the government itself," and (b)
they must have been taken by former President Marcos, his immediate
family, relatives, and close associates by illegal means.
But settling the sources and the kinds of assets and property covered by
E.O. No. 1 and related issuances did not complete the definition of ill-gotten
wealth. The further requirement was that the assets and property should
have been amassed by former President Marcos, his immediate family,
relatives, and close associates both here and abroad. In this regard,
identifying former President Marcos, his immediate family, and relatives was
not difficult, but identifying other persons who might be the close associates
of former President Marcos presented an inherent difficulty, because it was
not fair and just to include within the term close associates everyone who
had had any association with President Marcos, his immediate family, and
relatives.
Again, through several rulings, the Court became the arbiter to determine
who were the close associates within the coverage of E.O. No. 1.
In Republic v. Migrio, the Court held that respondents Migrio, et al. were
not necessarily among the persons covered by the term close subordinate or
close associate of former President Marcos by reason alone of their having
served as government officials or employees during the Marcos
administration, viz:
It does not suffice, as in this case, that the respondent is or was a
government official or employee during the administration of former Pres.
Marcos. There must be a prima facie showing that the respondent unlawfully
accumulated wealth by virtue of his close association or relation with former
Pres. Marcos and/or his wife. This is so because otherwise the respondents
case will fall under existing general laws and procedures on the matter. x x x
In Cruz, Jr. v. Sandiganbayan, the Court declared that the petitioner was not
a close associate as the term was used in E.O. No. 1 just because he had
served as the President and General Manager of the GSIS during the
Marcos administration.
In Republic v. Sandiganbayan, the Court stated that respondent Maj. Gen.
Josephus Q. Ramas having been a Commanding General of the Philippine
Army during the Marcos administration "d[id] not automatically make him a
subordinate of former President Ferdinand Marcos as this term is used in
Executive Order Nos. 1, 2, 14 and 14-A absent a showing that he enjoyed
close association with former President Marcos."
It is well to point out, consequently, that the distinction laid down by E.O. No.
1 and its related issuances, and expounded by relevant judicial
pronouncements unavoidably required competent evidentiary substantiation
made in appropriate judicial proceedings to determine: (a) whether the
assets or properties involved had come from the vast resources of
government, and (b) whether the individuals owning or holding such assets
or properties were close associates of President Marcos. The requirement of
competent evidentiary substantiation made in appropriate judicial
proceedings was imposed because the factual premises for the
reconveyance of the assets or properties in favor of the government due to
their being ill-gotten wealth could not be simply assumed. Indeed, in
BASECO, the Court made this clear enough by emphatically observing:
6. Governments Right and Duty to Recover All Ill-gotten Wealth
There can be no debate about the validity and eminent propriety of the
Governments plan "to recover all ill-gotten wealth."
Neither can there be any debate about the proposition that assuming the
above described factual premises of the Executive Orders and Proclamation
No. 3 to be true, to be demonstrable by competent evidence, the recovery
from Marcos, his family and his minions of the assets and properties
involved, is not only a right but a duty on the part of Government.
But however plain and valid that right and duty may be, still a balance must
be sought with the equally compelling necessity that a proper respect be
accorded and adequate protection assured, the fundamental rights of private
property and free enterprise which are deemed pillars of a free society such
as ours, and to which all members of that society may without exception lay
claim.
x x x Democracy, as a way of life enshrined in the Constitution, embraces as
its necessary components freedom of conscience, freedom of expression,
and freedom in the pursuit of happiness. Along with these freedoms are
included economic freedom and freedom of enterprise within reasonable
bounds and under proper control. x x x Evincing much concern for the
protection of property, the Constitution distinctly recognizes the preferred
position which real estate has occupied in law for ages. Property is bound up
with every aspect of social life in a democracy as democracy is conceived in
the Constitution. The Constitution realizes the indispensable role which
property, owned in reasonable quantities and used legitimately, plays in the
stimulation to economic effort and the formation and growth of a solid social
middle class that is said to be the bulwark of democracy and the backbone of
every progressive and happy country.
a. Need of Evidentiary Substantiation in Proper Suit
Consequently, the factual premises of the Executive Orders cannot simply be
assumed. They will have to be duly established by adequate proof in each
case, in a proper judicial proceeding, so that the recovery of the ill-gotten
wealth may be validly and properly adjudged and consummated; although
there are some who maintain that the fact that an immense fortune, and
"vast resources of the government have been amassed by former President
Ferdinand E. Marcos, his immediate family, relatives, and close associates
both here and abroad," and they have resorted to all sorts of clever schemes
and manipulations to disguise and hide their illicit acquisitions is within the
realm of judicial notice, being of so extensive notoriety as to dispense with
proof thereof. Be this as it may, the requirement of evidentiary substantiation
has been expressly acknowledged, and the procedure to be followed
explicitly laid down, in Executive Order No. 14.
Accordingly, the Republic should furnish to the Sandiganbayan in proper
judicial proceedings the competent evidence proving who were the close
associates of President Marcos who had amassed assets and properties that
would be rightly considered as ill-gotten wealth.
xxxx
As can be gleaned from the foregoing pronouncement, evidentiary
substantiation of the allegations of how the wealth was illegally acquired and
by whom was necessary. For that purpose, the mere holding of a position in
the Marcos administration did not necessarily make the holder a close
associate within the context of E.O. No.1. According to Republic v. Migrio,35
the term subordinate as used in E.O. No. 136 and E.O. No. 237 referred to a
person who enjoyed a close association with President Marcos and/or his
wife similar to that of an immediate family member, relative, and close
associate, or to that of a close relative, business associate, dummy, agent, or
nominee. Indeed, a prima facie showing must be made to show that one
unlawfully accumulated wealth by virtue of a close association or relation with
President Marcos and/or his wife.38 It would not suffice, then, that one served
during the administration of President Marcos as a government official or
employee.
The Republic particularly insists that Luz Bakunawa served as the Social
Secretary or the Assistant Social Secretary of First Lady Marcos; and
mentions several other circumstances that indicated her close relationship
with the Marcoses, such as her assumption of office in the early part of the
Marcos administration,39 the accommodations extended to her during her
various travels,40 the fact that her close relationship with the Marcoses was of
common knowledge among the Masbateos,41 and the negotiated contracts
the Bakunawas entered into during the Marcos administration. 42
However, Luz Bakunawa maintains that she was not First Lady Marcos
Social Secretary but a mere member of the staff of the Social Secretary; and
that the assets of the Bakunawas were honestly earned and acquired well
within the legitimate income of their businesses.
We hold that the Sandiganbayan correctly ruled that the evidence of the
Republic was able to establish, at best, that Luz Bakunawa had been an
employee in Malacaang Palace during the Marcos administration, and did
not establish her having a close relationship with the Marcoses, or her having
abused her position or employment in order to amass the assets subject of
this case. Consequently, Luz Bakunawa could not be considered a close
associate or subordinate of the Marcoses within the context of E.O. No. 1
and E.O. No. 2.
The determination by the Sandiganbayan of the equiponderance or
insufficiency of evidence involved its appreciation of the evidence. We cannot
undo such determination unless the Republic makes a strong demonstration
to us that the determination was whimsical or capricious.43 Alas, the Republic
did not make such demonstration. Its evidence could not sustain the belief
that the Bakunawas had used their influence, or the Marcoses influence in
acquiring their properties. Nor did it prove that the ties or relationship
between the Bakunawas and the Marcoses had been "similar to that of an
immediate member of the family or a dummy."
On another important aspect, the evidence of the Republic was likewise
wanting.1wphi1 The Sandiganbayan enumerated in its decision five
activities in which the Bakunawas had acquired their ill-gotten wealth,
namely: (a) land-grabbing and cattle-ranching; (b) engaging in government
construction projects; (c) operating fishponds; (d) obtaining credit lines from
government financial institutions; and (e) importing heavy equipment. 44
However, the decision dwelt only on land-grabbing and the construction
projects for the reason that the Republic attempted to substantiate only those
two activities. The Court is thus limited to the review of the findings on the
two activities.
Anent land-grabbing, the records show that although the Bakunawas had
ignored the summons from the Bureau of Forestry, and that the several
persons occupying large tracts of land under permits from the Bureau of
Forestry or under still-pending applications had been dispossessed thereof,
the dispossessed persons whom the Republic presented as witnesses could
not tell in court that the Bakunawas had employed the people who had
fenced or occupied the lands in question. Such witnesses admitted that they
did not put up much resistance against their forcible dispossession because
of their belief that the Bakunawas had been very influential and had enjoyed
very close ties with the Marcoses. However, they did not show that they had
at the time any direct contact or communication with the Bakunawas, which
could only mean that they only surmised and suspected the participation of
the Bakunawas in their dispossession. As such, the Republics evidence in
that regard could not be sufficient, for surmises and suspicions could not
support any conclusion either that the Bakunawas had taken advantage of
their close ties with the Marcoses in order to dispossess the affected
witnesses, or that Luz Bakunawa had abused her influence arising from her
close association with the Marcoses.
The Republic presented documents tending to prove that the dispossessed
witnesses had retained claims to the affected properties,45 and that the
Bakunawas themselves had been issued pasture leases over the same
areas.46 Given that both the dispossessed witnesses and the Bakunawas
held legal rights of possession respecting the same areas independently of
each other, the Sandiganbayan did not err in ruling that "the plaintiffs
evidence is not conclusive proof of the ill-gotten character of the lands in the
possession of the defendants Bakunawas."47 This is really a good reason for
the Sandiganbayan to hold that the Republic had not preponderantly shown
that the acts of dispossession and oppression had involved the improper use
of her influence by Luz Bakunawa on account of her close association with
the Marcoses.48
Concerning the negotiated construction contracts, the Republic posits that
the contracts had been entered into when Luz Bakunawa was a member of
the Presidential Staff during the Marcos administration, laying heavy
emphasis on the notations and handwritten instructions by President Marcos
found on the written communications from Manuel Bakunawa to then DPWH
Secretary Baltazar Aquino.
Yet, the Republic offered the negotiated contracts solely to prove that the
Bakunawas had been incorporators or owners, or had held key positions in
the corporations that entered into the contracts.49 The Sandiganbayan
correctly ruled, therefore, that the contracts could be considered and
appreciated only for those stated purposes, not for the purpose of proving the
irregularity of the contracts, opining as follows:
x x x. The documents appear to be public documents and are, therefore,
considered prima facie evidence of the fact of their issuance and that they
were signed by the persons whose signatures appear therein. It is, indeed,
apparent on the face of the documents that government projects were
awarded to the defendants Bakunawas through negotiated contracts, and
that at least one was approved by then President Marcos himself. Outside of
these, however, there can be no other facts that can be inferred from the
aforesaid documents.50
The Court upholds the Sandiganbayan. It was basic enough that the
Sandiganbayan could not consider any evidence that was not formally
offered; and could consider evidence only for the purposes it was specifically
offered. Section 34, Rule 132 of the Rules of Court explicitly states:
Section 34. Offer of evidence. The court shall consider no evidence which
has not been formally offered. The purpose for which the evidence is offered
must be specified.
The need to formally offer evidence by specifying the purpose of the offer
cannot be overemphasized. This need is designed to meet the demand for
due process by apprising the adverse party as well as the trial court on what
evidence the court would soon be called upon to decide the litigation. The
offer and purpose will also put the trial court in the position to determine
which rules of evidence it shall apply in admitting or denying admission to the
evidence being offered. According to Union Bank of the Philippines v. Tiu:51
x x x a formal offer is necessary because judges are mandated to rest their
findings of facts and their judgment only and strictly upon the evidence
offered by the parties at the trial. It has several functions: (1) to enable the
trial judge to know the purpose or purposes for which the proponent is
presenting the evidence; (2) to allow opposing parties to examine the
evidence and object to its admissibility; and (3) to facilitate review by the
appellate court, which will not be required to review documents not
previously scrutinized by the trial court. x x x.
Expounding on the office of the offer and statement of the purposes, the
Court has cogently said in Candido v. Court of Appeals:52
A document, or any article for that matter, is not evidence when it is simply
marked for identification; it must be formally offered, and the opposing
counsel given an opportunity to object to it or cross-examine the witness
called upon to prove or identify it. A formal offer is necessary since judges
are required to base their findings of fact and judgment only - and strictly -
upon the evidence offered by the parties at the trial. To allow a party to
attach any document to his pleading and then expect the court to consider it
as evidence may draw unwarranted consequences. The opposing party will
be deprived of his chance to examine the document and object to its
admissibility. The appellate court will have difficulty reviewing documents not
previously scrutinized by the court below. The pertinent provisions of the
Revised Rules of Court on the inclusion on appeal of documentary evidence
or exhibits in the records cannot be stretched as to include such pleadings or
documents not offered at the hearing of the case.
At any rate, the Court must point out that negotiated contracts are not per se
illegal. A negotiated contract is one that is awarded on the basis of a direct
agreement between the Government and the contractor, without going
through the normal procurement process, like obtaining the prior approval
from another authority, or a competitive bidding process. It is generally
resorted to for convenience, or "when time is of the essence, or where there
is a lack of qualified bidders or contractors, or where there is conclusive
evidence that greater economy and efficiency would be achieved."53 The
Court has upheld the validity of a negotiated contract made pursuant to law,
like a negotiated contract entered into by a City Mayor pursuant to the then
existing Local Government Code,54 or a negotiated contract that eventually
redounded to the benefit of the general public, even if there was no specific
covering appropriation pursuant to COA rules,55 or a negotiated contract that
was made due to an emergency in the health sector,56 or a negotiated
contract for long overdue repair and renovation needed to provide better
health services.57
Absent evidence proving that the negotiated construction contracts had been
irregularly entered into by the Bakunawas, or that the public had been
thereby prejudiced, it is pointless for the Court to declare their invalidity. On
the contrary, the Sandiganbayan correctly observed that the presumption of
the validity of the contracts prevailed.58
It is true that the recovery of ill-gotten wealth should be relentlessly pursued.
But the pursuit should not be mindless as to be oppressive towards anyone.
Due process requires that there be sufficient competent evidence of the
asset being ill-gotten wealth, and of the person or persons charged with the
illegal acquisition of ill-gotten wealth being a close associate or subordinate
of the Marcoses who took advantage of such ties with the Marcoses to enrich
themselves. In that effort, the Republic carries the heavy burden of proof,
and must discharge such burden fully; otherwise, the effort would fail and fall.

WHEREFORE, we DENY the petition for review on certiorari for its lack of
merit; and AFFIRM the decision rendered on April 10, 2002, without
pronouncements on costs of suit.

SO ORDERED.
G.R. No. 196231 January 28, 2014
EMILIO A. GONZALES III, Petitioner,
vs.
OFFICE OF THE PRESIDENT OF THE PHILIPPINES, ACTING THROUGH
AND REPRESENTED BY EXECUTIVE SECRETARY PAQUITO N.
OCHOA, JR., SENIOR DEPUTY EXECUTIVE SECRETARY JOSE AMOR
M. AMORANDO, OFFICER-IN-CHARGE - OFFICE OF THE DEPUTY
EXECUTIVE SECRETARY FOR LEGAL AFFAIRS, ATTY. RONALDO A.
GERON, DIR. ROWENA TURINGAN-SANCHEZ, AND ATTY. CARLITO D.
CATAYONG, Respondents.
x-----------------------x
G.R. No. 196232
WENDELL BARRERAS-SULIT Petitioner,
vs.
ATTY. PAQUITO N. OCHOA, JR., IN HIS CAP A CITY AS EXECUTIVE
SECRETARY, OFFICE OF THE PRESIDENT, ATTY. DENNIS F. ORTIZ,
ATTY. CARLO D. SULAY AND ATTY. FROILAN D. MONTALBAN, JR., IN
THEIR CAPACITIES AS CHAIRMAN AND MEMBERS OF OFFICE OF
MALACANANG LEGAL AFFAIRS, Respondents.
DECISION
BRION, J.:
We resolve the Office of the President's (OP 's) motion for reconsideration of
our September 4, 2012 Decision1 which ruled on the petitions filed by Deputy
Ombudsman Emilio Gonzales III and Special Prosecutor Wendell Barreras-
Sulit. Their petitions challenged the constitutionality of Section 8(2) of
Republic Act (RA) No. 6770.2
In the challenged Decision, the Court upheld the constitutionality of Section
8(2) of RA No. 6770 and ruled that the President has disciplinary jurisdiction
over a Deputy Ombudsman and a Special Prosecutor. The Court, however,
reversed the OP ruling that: (i) found Gonzales guilty of Gross Neglect of
Duty and Grave Misconduct constituting betrayal of public trust; and (ii)
imposed on him the penalty of dismissal.
Sulit, who had not then been dismissed and who simply sought to restrain
the disciplinary proceedings against her, solely questioned the jurisdiction of
the OP to subject her to disciplinary proceedings. The Court affirmed the
continuation of the proceedings against her after upholding the
constitutionality of Section 8(2) of RA No. 6770.
The fallo of our assailed Decision reads:
WHEREFORE, in G.R. No. 196231, the decision of the Office of the
President in OP Case No. 1 O-J-460 is REVERSED and SET ASIDE.
Petitioner Emilio A. Gonzales III is ordered REINSTATED with payment of
backwages corresponding to the period of suspension effective immediately,
even as the Office of the Ombudsman is directed to proceed with the
investigation in connection with the above case against petitioner. In G.R.
No. 196232, We AFFIRM the continuation of OP-DC Case No. ll-B-003
against Special Prosecutor Wendell Barreras-Sulit for alleged acts and
omissions tantamount to culpable violation of the Constitution and a betrayal
of public trust, in accordance with Section 8(2) of the Ombudsman Act of
1989.3
In view of the Courts ruling, the OP filed the present motion for
reconsideration through the Office of the Solicitor General (OSG).
We briefly narrate the facts that preceded the filing of the petitions and the
present motion for reconsideration.
I. ANTECEDENTS
A. Gonzales petition (G.R. No. 196231)
a. Factual antecedents
On May 26, 2008, Christian Kalaw filed separate charges with the Philippine
National Police Internal Affairs Service (PNP-IAS) and with the Manila City
Prosecutors Office against Manila Police District Senior Inspector Rolando
Mendoza and four others (Mendoza, et al.) for robbery, grave threat, robbery
extortion and physical injury.4
On May 29, 2008, Police Senior Superintendent Atty. Clarence Guinto filed
an administrative charge for grave misconduct with the National Police
Commission (NAPOLCOM) PNP-NCRPO against Mendoza, et al. based on
the same allegations made by Kalaw before the PNP-IAS.5
On July 2, 2008, Gonzales, Deputy Ombudsman for Military and Other Law
Enforcement Officers (MOLEO), directed the NAPOLCOM to turn over the
records of Mendozas case to his office. The Office of the Regional Director
of the NAPOLCOM duly complied on July 24, 2008.6 Mendoza, et al. filed
their position papers with Gonzales, in compliance with his Order.7
Pending Gonzales action on Mendoza, et al.s case (on August 26, 2008),
the Office of the City Prosecutor of Manila City dismissed Kalaws complaint
against Mendoza, et al. for his failure to substantiate his allegations.8
Similarly, on October 17, 2008, the PNP-IAS recommended the dismissal
without prejudice of the administrative case against Mendoza, et al. for
Kalaws failure to prosecute.9
On February 16, 2009, after preparing a draft decision on Mendoza, et al.s
case, Gonzales forwarded the entire records to the Office of then
Ombudsman Merceditas Gutierrez for her review.10 In his draft decision,
Gonzales found Mendoza, et al. guilty of grave misconduct and imposed on
them the penalty of dismissal from the service.11
Mendoza, et al. received a copy of the Ombudsmans decision that approved
Gonzales recommendation on October 30, 2009. Mendoza, et al. filed a
motion for reconsideration12 on November 5, 2009, followed by a
Supplement to the Motion for Reconsideration.13
On December 10, 2009, the MOLEO-Records Section forwarded Mendoza,
et al.s case records to the Criminal Investigation, Prosecution and
Administrative Bureau-MOLEO. On December 14, 2009, the case was
assigned to Graft Investigation and Prosecution Officer (GIPO) Dennis
Garcia for review and recommendation.14
GIPO Garcia released a draft order15 to his immediate superior, Director
Eulogio S. Cecilio, for appropriate action on April 5, 2010. Dir. Cecilio signed
and forwarded the draft order to Gonzales office on April 27, 2010. Gonzales
reviewed the draft and endorsed the order, together with the case records,
on May 6, 2010 for the final approval by the Ombudsman.16
On August 23, 2010, pending final action by the Ombudsman on Mendoza,
et al.s case, Mendoza hijacked a tourist bus and held the 21 foreign tourists
and the four Filipino tour assistants on board as hostages. While the
government exerted earnest attempts to peacefully resolve the hostage-
taking, it ended tragically, resulting in the deaths of Mendoza and several
others on board the hijacked bus.
In the aftermath, President Benigno C. Aquino III directed the Department of
Justice and the Department of Interior and Local Government to conduct a
joint thorough investigation of the incident. The two departments issued Joint
Department Order No. 01-2010, creating an Incident Investigation and
Review Committee (IIRC).
In its September 16, 2010 First Report, the IIRC found the Ombudsman and
Gonzales accountable for their "gross negligence and grave misconduct in
handling the case against Mendoza."17 The IIRC stated that the
Ombudsman and Gonzales failure to promptly resolve Mendozas motion for
reconsideration, "without justification and despite repeated pleas" xxx
"precipitated the desperate resort to hostage-taking."18 The IIRC
recommended the referral of its findings to the OP for further determination of
possible administrative offenses and for the initiation of the proper
administrative proceedings.19
Accordingly, on October 15, 2010, Gonzales was formally charged before the
OP for Gross Neglect of Duty and/or Inefficiency in the Performance of
Official Duty and for Misconduct in Office.20
b. The OP ruling
On March 31, 2011, the OP found Gonzales guilty as charged and dismissed
him from the service.21 According to the OP, "the inordinate and unjustified
delay in the resolution of [Mendozas] Motion for Reconsideration [that
spanned for nine (9) long months] xxx amounted to gross neglect of duty"
and "constituted a flagrant disregard of the Office of the Ombudsmans own
Rules of Procedure."22
c. The Petition
Gonzales posited in his petition that the OP has no administrative disciplinary
jurisdiction over a Deputy Ombudsman. Under Section 21 of RA No. 6770, it
is the Ombudsman who exercises administrative disciplinary jurisdiction over
the Deputy Ombudsman.
On the merits, Gonzales argued that his office received the draft order from
GIPO Garcia on April 27, 2010. On May 6, 2010, he completed his review of
the draft, approved it, and transmitted it to the Office of the Ombudsman for
final approval. Since the draft order on Mendozas motion for reconsideration
had to undergo different levels of preparation, review and approval, the
period it took to resolve the motion could not be unjustified, since he himself
acted on the draft order only within nine (9) calendars days from his receipt
of the order.23
B. Sulits petition (G.R. No. 196232)
In April 2005, the Office of the Ombudsman charged Major General Carlos F.
Garcia and several others, before the Sandiganbayan, with plunder and
money laundering. On May 7, 2007, Garcia filed an Urgent Petition for Bail
which the prosecution opposed. The Sandiganbayan denied Garcia's urgent
petition for bail on January 7, 2010, in view of the strength of the
prosecutions evidence against Garcia.
On February 25, 2010, the Office of the Ombudsman, through Sulit and her
prosecutorial staff, entered into a plea bargaining agreement (Agreement)
with Garcia.24 Garcia thereby agreed to: (i) withdraw his plea of not guilty to
the charge of plunder and enter a plea of guilty to the lesser offense of
indirect bribery; and (ii) withdraw his plea of not guilty to the charge of money
laundering and enter a guilty plea to the lesser offense of facilitating money
laundering. In exchange, he would convey to the government his ownership,
rights and other interests over the real and personal properties enumerated
in the Agreement and the bank deposits alleged in the information.25
The Sandiganbayan approved the Agreement on May 4, 201026 based on
the parties submitted Joint Motion for Approval.27
The apparent one-sidedness of the Agreement drew public outrage and
prompted the Committee on Justice of the House of Representatives to
conduct an investigation. After public hearings, the Committee found that
Sulit, her deputies and assistants committed culpable violations of the
Constitution and betrayal of public trust grounds for removal under Section
8(2) of RA No. 6770.28 The Committee recommended to the President the
dismissal from the service of Sulit and the filing of appropriate charges
against her deputies and assistants before the appropriate government
office.
Accordingly, the OP initiated an administrative disciplinary proceeding
against Sulit.29 On March 24, 2011, Sulit filed her Written Explanation,
questioning the OPs jurisdiction.30 The question of jurisdiction
notwithstanding, the OP set the case for preliminary investigation on April 15,
2011, prompting Sulit to seek relief from this Court.
II. COURTS RULING
On motion for reconsideration and further reflection, the Court votes to grant
Gonzales petition and to declare Section 8(2) of RA No. 6770
unconstitutional with respect to the Office of the Ombudsman. (As the full
explanation of the Courts vote describes below, this conclusion does not
apply to Sulit as the grant of independence is solely with respect to the Office
of the Ombudsman which does not include the Office of the Special
Prosecutor under the Constitution. The prevailing ruling on this latter point is
embodied in the Concurring and Dissenting Opinion of J. Marvic Mario Victor
Leonen).
A. Preliminary considerations:
a. Absence of motion for reconsideration on the part of the petitioners
At the outset, the Court notes that Gonzales and Sulit did not file a motion for
reconsideration of the Courts September 4, 2012 Decision; only the OP,
through the OSG, moved for the reconsideration of our ruling reinstating
Gonzales.
This omission, however, poses no obstacle for the Courts review of its ruling
on the whole case since a serious constitutional question has been raised
and is one of the underlying bases for the validity or invalidity of the
presidential action. If the President does not have any constitutional authority
to discipline a Deputy Ombudsman and/or a Special Prosecutor in the first
place, then any ruling on the legal correctness of the OPs decision on the
merits will be an empty one.
In other words, since the validity of the OPs decision on the merits of the
dismissal is inextricably anchored on the final and correct ruling on the
constitutional issue, the whole case including the constitutional issue
remains alive for the Courts consideration on motion for reconsideration.
b. The justiciability of the constitutional
issue raised in the petitions
We clarify, too, that the issue of whether a Deputy Ombudsman may be
subjected to the administrative disciplinary jurisdiction of the President
(concurrently with that of the Ombudsman) is a justiciable not a political
question. A justiciable question is one which is inherently susceptible of
being decided on grounds recognized by law,31 as where the court finds that
there are constitutionally-imposed limits on the exercise of the powers
conferred on a political branch of the government.32
In resolving the petitions, we do not inquire into the wisdom of the Congress
choice to grant concurrent disciplinary authority to the President. Our inquiry
is limited to whether such statutory grant violates the Constitution, particularly
whether Section 8(2) of RA No. 6770 violates the core constitutional principle
of the independence of the Office of the Ombudsman as expressed in
Section 5, Art. XI of the Constitution.
To be sure, neither the Executive nor the Legislative can create the power
that Section 8(2) of RA No. 6770 grants where the Constitution confers none.
When exercised authority is drawn from a vacuum, more so when the
authority runs counter to a core constitutional principle and constitutional
intents, the Court is duty-bound to intervene under the powers and duties
granted and imposed on it by Article VIII of the Constitution.
B. The Deputy Ombudsman: Constitutional Issue
a. The Philippine Ombudsman
Prior to the 1973 Constitution, past presidents established several
Ombudsman-like agencies to serve as the people's medium for airing
grievances and for direct redress against abuses and misconduct in the
government. Ultimately, however, these agencies failed to fully realize their
objective for lack of the political independence necessary for the effective
performance of their function as government critic.33
It was under the 1973 Constitution that the Office of the Ombudsman
became a constitutionally-mandated office to give it political independence
and adequate powers to enforce its mandate. Pursuant to the 1973
Constitution, President Ferdinand Marcos enacted Presidential Decree (PD)
No. 1487, as amended by PD No. 1607 and PD No. 1630, creating the Office
of the Ombudsman to be known as Tanodbayan. It was tasked principally to
investigate, on complaint or motu proprio, any administrative act of any
administrative agency, including any government-owned or controlled
corporation. When the Office of the Tanodbayan was reorganized in 1979,
the powers previously vested in the Special Prosecutor were transferred to
the Tanodbayan himself. He was given the exclusive authority to conduct
preliminary investigation of all cases cognizable by the Sandiganbayan, file
the corresponding information, and control the prosecution of these cases.34
With the advent of the 1987 Constitution, a new Office of the Ombudsman
was created by constitutional fiat. Unlike in the 1973 Constitution, its
independence was expressly and constitutionally guaranteed. Its objectives
are to enforce the state policy in Section 27, Article II35 and the standard of
accountability in public service under Section 1, Article XI of the 1987
Constitution. These provisions read:
Section 27. The State shall maintain honesty and integrity in the public
service and take positive and effective measures against graft and
corruption.
Section 1. Public office is a public trust. Public officers and employees must,
at all times, be accountable to the people, serve them with utmost
responsibility, integrity, loyalty, and efficiency; act with patriotism and justice,
and lead modest lives.
Under Section 12, Article XI of the 1987 Constitution, the Office of the
Ombudsman is envisioned to be the "protector of the people" against the
inept, abusive, and corrupt in the Government, to function essentially as a
complaints and action bureau.36 This constitutional vision of a Philippine
Ombudsman practically intends to make the Ombudsman an authority to
directly check and guard against the ills, abuses and excesses of the
bureaucracy. Pursuant to Section 13(8), Article XI of the 1987 Constitution,
Congress enacted RA No. 6770 to enable it to further realize the vision of the
Constitution. Section 21 of RA No. 6770 provides:
Section 21. Official Subject to Disciplinary Authority; Exceptions. The
Office of the Ombudsman shall have disciplinary authority over all elective
and appointive officials of the Government and its subdivisions,
instrumentalities and agencies, including Members of the Cabinet, local
government, government-owned or controlled corporations and their
subsidiaries, except over officials who may be removed only by impeachment
or over Members of Congress, and the Judiciary. [emphasis ours, italics
supplied]
As the Ombudsman is expected to be an "activist watchman,"37 the Court
has upheld its actions, although not squarely falling under the broad powers
granted it by the Constitution and by RA No. 6770, if these actions are
reasonably in line with its official function and consistent with the law and the
Constitution.38
The Ombudsmans broad investigative and disciplinary powers include all
acts of malfeasance, misfeasance, and nonfeasance of all public officials,
including Members of the Cabinet and key Executive officers, during their
tenure. To support these broad powers, the Constitution saw it fit to insulate
the Office of the Ombudsman from the pressures and influence of officialdom
and partisan politics and from fear of external reprisal by making it an
"independent" office. Section 5,
Article XI of the Constitution expressed this intent, as follows:
Section 5. There is hereby created the independent Office of the
Ombudsman, composed of the Ombudsman to be known as Tanodbayan,
one overall Deputy and at least one Deputy each for Luzon, Visayas, and
Mindanao. A separate Deputy for the military establishment may likewise be
appointed. [emphasis ours]
Given the scope of its disciplinary authority, the Office of the Ombudsman is
a very powerful government constitutional agency that is considered "a notch
above other grievance-handling investigative bodies."39 It has powers, both
constitutional and statutory, that are commensurate with its daunting task of
enforcing accountability of public officers.40
b. "Independence" of constitutional bodies vis-a-vis the Ombudsmans
independence
Under the Constitution, several constitutional bodies have been expressly
labeled as "independent."41 The extent of the independence enjoyed by
these constitutional bodies however varies and is to be interpreted with two
significant considerations in mind: first, the functions performed or the
powers involved in a given case; and second, consistency of any allowable
interference to these powers and functions, with the principle of checks and
balances.
Notably, the independence enjoyed by the Office of the Ombudsman and by
the Constitutional Commissions shares certain characteristics they do not
owe their existence to any act of Congress, but are created by the
Constitution itself; additionally, they all enjoy fiscal autonomy. In general
terms, the framers of the Constitution intended that these "independent"
bodies be insulated from political pressure to the extent that the absence of
"independence" would result in the impairment of their core functions.
In Bengzon v. Drilon,42 involving the fiscal autonomy of the Judiciary, we
ruled against the interference that the President may bring and maintained
that the independence and the flexibility of the Judiciary, the Constitutional
Commissions and the Office of the Ombudsman are crucial to our legal
system.
The Judiciary, the Constitutional Commissions, and the Ombudsman must
have the independence and flexibility needed in the discharge of their
constitutional duties. The imposition of restrictions and constraints on the
manner the independent constitutional offices allocate and utilize the funds
appropriated for their operations is anathema to fiscal autonomy and violative
not only the express mandate of the Constitution but especially as regards
the Supreme Court, of the independence and separation of powers upon
which the entire fabric of our constitutional system is based.
The constitutional deliberations explain the Constitutional Commissions
need for independence. In the deliberations of the 1973 Constitution, the
delegates amended the 1935 Constitution by providing for a constitutionally-
created Civil Service Commission, instead of one created by law, on the
premise that the effectivity of this body is dependent on its freedom from the
tentacles of politics.43 In a similar manner, the deliberations of the 1987
Constitution on the Commission on Audit highlighted the developments in the
past Constitutions geared towards insulating the Commission on Audit from
political pressure.44
Notably, the Constitution also created an "independent" Commission on
Human Rights, although it enjoys a lesser degree of independence since it is
not granted fiscal autonomy in the manner fiscal autonomy is granted to the
constitutional commissions. The lack of fiscal autonomy notwithstanding, the
framers of the 1987 Constitution clearly expressed their desire to keep the
Commission independent from the executive branch and other political
leaders:
MR. MONSOD. We see the merits of the arguments of Commissioner
Rodrigo. If we explain to him our concept, he can advise us on how to
reconcile his position with ours. The position of the committee is that we
need a body that would be able to work and cooperate with the executive
because the Commissioner is right. Many of the services needed by this
commission would need not only the cooperation of the executive branch of
the government but also of the judicial branch of government. This is going to
be a permanent constitutional commission over time. We also want a
commission to function even under the worst circumstance when the
executive may not be very cooperative. However, the question in our mind is:
Can it still function during that time? Hence, we are willing to accept
suggestions from Commissioner Rodrigo on how to reconcile this. We realize
the need for coordination and cooperation. We also would like to build in
some safeguards that it will not be rendered useless by an uncooperative
executive.
xxxx
MR. GARCIA. xxx Very often, when international commissions or
organizations on human rights go to a country, the most credible
organizations are independent human rights bodies. Very often these are
private organizations, many of which are prosecuted, such as those we find
in many countries in Latin America. In fact, what we are proposing is an
independent body on human rights, which would provide governments with
credibility precisely because it is independent of the present administration.
Whatever it says on the human rights situation will be credible because it is
not subject to pressure or control from the present political leadership.
Secondly, we all know how political fortunes come and go. Those who are in
power yesterday are in opposition today and those who are in power today
may be in the opposition tomorrow. Therefore, if we have a Commission on
Human Rights that would investigate and make sure that the rights of each
one is protected, then we shall have a body that could stand up to any
power, to defend the rights of individuals against arrest, unfair trial, and so
on.45
These deliberative considerations abundantly show that the independent
constitutional commissions have been consistently intended by the framers
to be independent from executive control or supervision or any form of
political influence. At least insofar as these bodies are concerned,
jurisprudence is not scarce on how the "independence" granted to these
bodies prevents presidential interference.
In Brillantes, Jr. v. Yorac,46 we emphasized that the Constitutional
Commissions, which have been characterized under the Constitution as
"independent," are not under the control of the President, even if they
discharge functions that are executive in nature. The Court declared as
unconstitutional the Presidents act of temporarily appointing the respondent
in that case as Acting Chairman of the Comelec "however well-meaning"47 it
might have been.
In Bautista v. Senator Salonga,48 the Court categorically stated that the
tenure of the commissioners of the independent Commission on Human
Rights could not be placed under the discretionary power of the President:
Indeed, the Court finds it extremely difficult to conceptualize how an office
conceived and created by the Constitution to be independent as the
Commission on Human Rights and vested with the delicate and vital
functions of investigating violations of human rights, pinpointing responsibility
and recommending sanctions as well as remedial measures therefor, can
truly function with independence and effectiveness, when the tenure in office
of its Chairman and Members is made dependent on the pleasure of the
President. Executive Order No. 163-A, being antithetical to the constitutional
mandate of independence for the Commission on Human Rights has to be
declared unconstitutional.
Again, in Atty. Macalintal v. Comelec,49 the Court considered even the mere
review of the rules of the Commission on Elections by Congress a
"trampling" of the constitutional mandate of independence of this body.
Obviously, the mere review of rules places considerably less pressure on a
constitutional body than the Executives power to discipline and remove key
officials of the Office of the Ombudsman, yet the Court struck down the law
as unconstitutional.
The kind of independence enjoyed by the Office of the Ombudsman certainly
cannot be inferior but is similar in degree and kind to the independence
similarly guaranteed by the Constitution to the Constitutional Commissions
since all these offices fill the political interstices of a republican democracy
that are crucial to its existence and proper functioning.50
c. Section 8(2) of RA No. 6770
vesting disciplinary authority
in the President over the
Deputy Ombudsman violates
the independence of the Office
of the Ombudsman and is thus
unconstitutional
Our discussions, particularly the Courts expressed caution against
presidential interference with the constitutional commissions, on one hand,
and those expressed by the framers of the 1987 Constitution, on the other, in
protecting the independence of the Constitutional Commissions, speak for
themselves as overwhelming reasons to invalidate Section 8(2) of RA No.
6770 for violating the independence of the Office of the Ombudsman.
In more concrete terms, we rule that subjecting the Deputy Ombudsman to
discipline and removal by the President, whose own alter egos and officials
in the Executive Department are subject to the Ombudsmans disciplinary
authority, cannot but seriously place at risk the independence of the Office of
the Ombudsman itself. The Office of the Ombudsman, by express
constitutional mandate, includes its key officials, all of them tasked to support
the Ombudsman in carrying out her mandate. Unfortunately, intrusion upon
the constitutionally-granted independence is what Section 8(2) of RA No.
6770 exactly did. By so doing, the law directly collided not only with the
independence that the Constitution guarantees to the Office of the
Ombudsman, but inevitably with the principle of checks and balances that the
creation of an Ombudsman office seeks to revitalize.
What is true for the Ombudsman must be equally and necessarily true for her
Deputies who act as agents of the Ombudsman in the performance of their
duties. The Ombudsman can hardly be expected to place her complete trust
in her subordinate officials who are not as independent as she is, if only
because they are subject to pressures and controls external to her Office.
This need for complete trust is true in an ideal setting and truer still in a
young democracy like the Philippines where graft and corruption is still a
major problem for the government. For these reasons, Section 8(2) of RA
No. 6770 (providing that the President may remove a Deputy Ombudsman)
should be declared void.
The deliberations of the Constitutional Commission on the independence of
the Ombudsman fully support this position. Commissioner Florenz Regalado
of the Constitutional Commission expressed his apprehension that any form
of presidential control over the Office of the Ombudsman would diminish its
independence.51 The following exchanges between Commissioners Blas
Ople and Christian Monsod further reveal the constitutional intent to keep the
Office of the Ombudsman independent from the President:
MR. OPLE. xxx
May I direct a question to the Committee? xxx [W]ill the Committee consider
later an amendment xxx, by way of designating the office of the Ombudsman
as a constitutional arm for good government, efficiency of the public service
and the integrity of the President of the Philippines, instead of creating
another agency in a kind of administrative limbo which would be accountable
to no one on the pretext that it is a constitutional body?
MR. MONSOD. The Committee discussed that during our committee
deliberations and when we prepared the report, it was the opinion of the
Committee and I believe it still is that it may not contribute to the
effectiveness of this office of the Ombudsman precisely because many of the
culprits in inefficiency, injustice and impropriety are in the executive
department. Therefore, as we saw the wrong implementation of the
Tanodbayan which was under the tremendous influence of the President, it
was an ineffectual body and was reduced to the function of a special fiscal.
The whole purpose of our proposal is precisely to separate those functions
and to produce a vehicle that will give true meaning to the concept of
Ombudsman. Therefore, we regret that we cannot accept the proposition.52
The statements made by Commissioner Monsod emphasized a very logical
principle: the Executive power to remove and discipline key officials of the
Office of the Ombudsman, or to exercise any power over them, would result
in an absurd situation wherein the Office of the Ombudsman is given the duty
to adjudicate on the integrity and competence of the very persons who can
remove or suspend its members. Equally relevant is the impression that
would be given to the public if the rule were otherwise. A complainant with a
grievance against a high-ranking official of the Executive, who appears to
enjoy the Presidents favor, would be discouraged from approaching the
Ombudsman with his complaint; the complainants impression (even if
misplaced), that the Ombudsman would be susceptible to political pressure,
cannot be avoided. To be sure, such an impression would erode the
constitutional intent of creating an Office of the Ombudsman as champion of
the people against corruption and bureaucracy.
d. The mutual-protection argument for
crafting Section 8(2)of RA No. 6770
In crafting Section 8(2) of RA No. 6770, Congress apparently addressed the
concern that a lack of an external check against the Deputy Ombudsman
would result in mutual protection between the Ombudsman and her
Deputies.
While the preceding discussion already suffices to address this concern, it
should be added that this concern stands on shaky grounds since it ignores
the existing checks and balances already in place. On the one hand, the
Ombudsmans Deputies cannot protect the Ombudsman because she is
subject to the impeachment power of Congress. On the other hand, the
Ombudsmans attempt to cover up the misdeeds of her Deputies can be
questioned before the Court on appeal or certiorari. The same attempt can
likewise subject her to impeachment.
The judicial recourse available is only consistent with the nature of the
Supreme Court as a non-political independent body mandated by the
Constitution to settle judicial and quasi-judicial disputes, whose judges and
employees are not subject to the disciplinary authority of the Ombudsman
and whose neutrality would be less questionable. The Members of the Court
themselves may be subjected to the impeachment power of Congress.
In these lights, the appeal, if any, of the mutual protection argument becomes
distinctly implausible. At the same time, the Court remains consistent with its
established rulings - that the independence granted to the Constitutional
Commissions bars any undue interference from either the Executive or
Congress and is in full accord with constitutional intent.
e. Congress power determines the
manner and causes for the removal
of non-impeachable officers is not a
carte blanch authority
Under Section 2, Article XI of the 1987 Constitution,53 Congress is
empowered to determine the modes of removal from office of all public
officers and employees except the President, the Vice-President, the
Members of the Supreme Court, the Members of the Constitutional
Commissions, and the Ombudsman, who are all impeachable officials.
The intent of the framers of the Constitution in providing that "[a]ll other
public officers and employees may be removed from office as provided by
law, but not by impeachment" in the second sentence of Section 2, Article XI
is to prevent Congress from extending the more stringent rule of "removal
only by impeachment" to favored public officers.54 Understandably so,
impeachment is the most difficult and cumbersome mode of removing a
public officer from office. It is, by its nature, a sui generis politico-legal
process55 that signals the need for a judicious and careful handling as
shown by the process required to initiate the proceeding;56 the one-year
limitation or bar for its initiation;57 the limited grounds for impeachment;58
the defined instrumentality given the power to try impeachment cases;59 and
the number of votes required for a finding of guilt.60 All these argue against
the extension of this removal mechanism beyond those mentioned in the
Constitution.
On the practical side, our nation has witnessed the complications and
problems an impeachment proceeding entails, thus justifying its limited
application only to the officials occupying the highest echelons of
responsibility in our government. To name a few, some of the negative
practical effects of impeachment are: it stalls legislative work; it is an
expensive process in terms of the cost of prosecution alone; and, more
importantly, it is inherently divisive of the nation.61 Thus, in a cost-benefit
analysis of adopting impeachment as a mechanism, limiting Congress power
to otherwise legislate on the matter is far more advantageous to the country.
It is in these lights that the second sentence in Section 2, Article XI of the
1987 Constitution should be read. Contrary to the implied view of the
minority, in no way can this provision be regarded as blanket authority for
Congress to provide for any ground of removal it deems fit. While the manner
and cause of removal are left to congressional determination, this must still
be consistent with constitutional guarantees and principles, namely: the right
to procedural and substantive due process; the constitutional guarantee of
security of tenure; the principle of separation of powers; and the principle of
checks and balances.62
In short, the authority granted by the Constitution to Congress to provide for
the manner and cause of removal of all other public officers and employees
does not mean that Congress can ignore the basic principles and precepts
established by the Constitution.
In the same manner, the congressional determination of the identity of the
disciplinary authority is not a blanket authority for Congress to repose it on
whomsoever Congress chooses without running afoul of the independence
enjoyed by the Office of the Ombudsman and without disrupting the delicate
check and balance mechanism under the Constitution. Properly viewed from
this perspective, the core constitutional principle of independence is
observed and any possible absurdity resulting from a contrary interpretation
is avoided. In other words, while the Constitution itself vested Congress with
the power to determine the manner and cause of removal of all non-
impeachable officials, this power must be interpreted consistent with the core
constitutional principle of independence of the Office of the Ombudsman. Our
observation in Macalintal v. Comelec63 is apt:
The ambit of legislative power under Article VI of the Constitution is
circumscribed by other constitutional provisions. One such provision is
Section 1 of Article IX-A of the 1987 Constitution ordaining that constitutional
commissions such as the COMELEC shall be "independent."
While one may argue that the grounds for impeachment under Section 8(2)
of RA No. 6770 is intended as a measure of protection for the Deputy
Ombudsman and Special Prosecutor since these grounds are not intended
to cover all kinds of official wrongdoing and plain errors of judgment - this
argument seriously overlooks the erosion of the independence of the Office
of the Ombudsman that it creates. The mere fact that a statutorily-created
sword of Damocles hangs over the Deputy Ombudsmans head, by itself,
opens up all the channels for external pressures and influence of officialdom
and partisan politics. The fear of external reprisal from the very office he is to
check for excesses and abuses defeats the very purpose of granting
independence to the Office of the Ombudsman.
That a judicial remedy is available (to set aside dismissals that do not
conform to the high standard required in determining whether a Deputy
Ombudsman committed an impeachable offense) and that the Presidents
power of removal is limited to specified grounds are dismally inadequate
when balanced with the constitutional principle of independence. The mere
filing of an administrative case against the Deputy Ombudsman and the
Special Prosecutor before the OP can already result in their suspension and
can interrupt the performance of their functions, in violation of Section 12,
Article XI of the Constitution. With only one term allowed under Section 11, a
Deputy Ombudsman or Special Prosecutor, if removable by the President,
can be reduced to the very same ineffective Office of the Ombudsman that
the framers had foreseen and carefully tried to avoid by making these offices
independent constitutional bodies.
At any rate, even assuming that the OP has disciplinary authority over the
Deputy Ombudsman, its decision finding Gonzales guilty of Gross Neglect of
Duty and Grave Misconduct constituting betrayal of public trust is patently
erroneous. The OPs decision perfectly illustrates why the requirement of
impeachment-grounds in Section 8(2) of RA No. 6770 cannot be considered,
even at a minimum, a measure of protection of the independence of the
Office of the Ombudsman.
C. The Deputy Ombudsman: The Dismissal Issue
a. The Office of the Presidents
finding of gross negligence
has no legal and factual leg to
stand on
The OPs decision found Gonzales guilty of Gross Neglect of Duty and of
Grave Misconduct. The assailed Decision of the OP reads:
Upon consideration of the First Report, the evidence and allegations of
respondent Deputy Ombudsman himself, and other documentary evidence
gathered, this Office finds that the inordinate and unjustified delay in the
resolution of Captain Mendozas Motion for Reconsideration timely filed on 5
November 2009 xxx amounted to gross neglect of duty and/or inefficiency in
the performance of official duty.64
b. No gross neglect of duty or inefficiency
Let us again briefly recall the facts.
1. November 5, 2009 - Mendoza filed a Motion for Reconsideration
of the decision of the Ombudsman,65 which was followed by a
Supplement to the Motion for Reconsideration;66
2. December 14, 200967 - GIPO Garcia, who was assigned to
review these motions and make his recommendation for the
appropriate action, received the records of the case;
3. April 5, 2010 GIPO Garcia released a draft order to be reviewed
by his immediate superior, Dir. Cecilio;68
4. April 27, 2010 Dir. Cecilio signed and forwarded to Gonzales this
draft order;69
5. May 6, 2010 (or nine days after the records were forwarded to
Gonzales) Gonzales endorsed the draft order for the final approval
of the Ombudsman.70
Clearly, when Mendoza hijacked the tourist bus on August 23, 2010, the
records of the case were already pending before Ombudsman Gutierrez.
Gross negligence refers to negligence characterized by the want of even the
slightest care, acting or omitting to act in a situation where there is a duty to
act, not inadvertently but willfully and intentionally, with a conscious
indifference to consequences insofar as other persons may be affected. In
the case of public officials, there is gross negligence when a breach of duty is
flagrant and palpable.71
Gonzales cannot be guilty of gross neglect of duty and/or inefficiency since
he acted on the case forwarded to him within nine days. In finding Gonzales
guilty, the OP72 relied on Section 8, Rule III of Administrative Order No. 7 (or
the Rules of Procedure of the Office of the Ombudsman, series of 1990, as
amended) in ruling that Gonzales should have acted on Mendozas Motion
for Reconsideration within five days:
Section 8. Motion for reconsideration or reinvestigation: Grounds
Whenever allowable, a motion for reconsideration or reinvestigation may only
be entertained if filed within ten (10) days from receipt of the decision or
order by the party on the basis of any of the following grounds:
a) New evidence had been discovered which materially affects the
order, directive or decision;
b) Grave errors of facts or laws or serious irregularities have been
committed prejudicial to the interest of the movant.
Only one motion for reconsideration or reinvestigation shall be allowed, and
the Hearing Officer shall resolve the same within five (5) days from the date
of submission for resolution. [emphasis and underscore ours]
Even if we consider this provision to be mandatory, the period it requires
cannot apply to Gonzales since he is a Deputy Ombudsman whose
obligation is to review the case; he is not simply a Hearing Officer tasked with
the initial resolution of the motion. In Section 6 of Administrative Order No. 7
on the resolution of the case and submission of the proposed decision, the
period for resolving the case does not cover the period within which it should
be reviewed:
Section 6. Rendition of decision. Not later than thirty (30) days after the
case is declared submitted for resolution, the Hearing Officer shall submit a
proposed decision containing his findings and recommendation for the
approval of the Ombudsman. Said proposed decision shall be reviewed by
the Directors, Assistant Ombudsmen and Deputy Ombudsmen concerned.
With respect to low ranking public officials, the Deputy Ombudsman
concerned shall be the approving authority. Upon approval, copies thereof
shall be served upon the parties and the head of the office or agency of
which the respondent is an official or employee for his information and
compliance with the appropriate directive contained therein. [italics and
emphases supplied]
Thus, the OPs ruling that Gonzales had been grossly negligent for taking
nine days, instead of five days, to review a case was totally baseless.
c. No actionable failure to supervise subordinates
The OPs claims that Gonzales could have supervised his subordinates to
promptly act on Mendozas motion and apprised the Tanodbayan of the
urgency of resolving the same are similarly groundless.
The Office of the Ombudsman is not a corner office in our bureaucracy. It
handles numerous cases that involve the potential loss of employment of
many other public employees. We cannot conclusively state, as the OP
appears to suggest, that Mendozas case should have been prioritized over
other similar cases.
The Court has already taken judicial notice of the steady stream of cases
reaching the Office of the Ombudsman.73 This consideration certainly
militates against the OSGs observation that there was "a grossly inordinate
and inexcusable delay"74 on the part of Gonzales.
Equally important, the constitutional guarantee of "speedy disposition of
cases" before, among others, quasi-judicial bodies,75 like the Office of the
Ombudsman, is itself a relative concept.76 Thus, the delay, if any, must be
measured in this objective constitutional sense. Unfortunately, because of
the very statutory grounds relied upon by the OP in dismissing Gonzales, the
political and, perhaps, "practical" considerations got the better of what is
legal and constitutional.
The facts do not show that Gonzales subordinates had in any way been
grossly negligent in their work. While GIPO Garcia reviewed the case and
drafted the order for more than three months, it is noteworthy that he had not
drafted the initial decision and, therefore, had to review the case for the first
time.77 Even the Ombudsman herself could not be faulted for acting on a
case within four months, given the amount of cases that her office handles.
The point is that these are not inordinately long periods for the work involved:
examination of the records, research on the pertinent laws and
jurisprudence, and exercise of legal judgment and discretion. If this Court
rules that these periods per se constitute gross neglect of duty, the
Ombudsmans constitutional mandate to prosecute all the erring officials of
this country would be subjected to an unreasonable and overwhelming
constraint. Similarly, if the Court rules that these periods per se constitute
gross neglect of duty, then we must be prepared to reconcile this with the
established concept of the right of speedy disposition of cases something
the Court may be hard put to justify.
d. No undue interest
The OP also found Gonzales guilty of showing undue interest in Mendozas
case by having the case endorsed to the Office of the Ombudsman and by
resolving it against Mendoza on the basis of the unverified complaint-affidavit
of the alleged victim, Kalaw.
The fact that Gonzales had Mendozas case endorsed to his office lies within
his mandate, even if it were based merely on the request of the alleged
victims father. The Constitution empowers the Ombudsman and her
Deputies to act promptly on complaints filed in any form or manner against
any public official or employee of the government.78 This provision is echoed
by Section 13 of RA No. 6770,79 and by Section 3, Rule III of Administrative
Order No. 7, series of 1990, as amended.80
Moreover, Gonzales and his subordinates did not resolve the complaint only
on the basis of the unverified affidavit of Kalaw. Based on the prosecution
officers recommendations, the finding of guilt on the part of Mendoza, et al.
was based on their admissions as well. Mendoza, et al. admitted that they
had arrested Kalaw based on two traffic violations and allowed him to stay
the whole night until the following morning in the police precinct. The next
morning, Kalaw was allowed to leave the precinct despite his failure to show
a valid license and based merely on his promise to return with the proper
documents.81 These admissions led Gonzales and his staff to conclude that
Mendoza, et al. irregularly acted in apprehending Kalaw, since the proper
procedure for the apprehension of traffic violators would be to give them a
ticket and to file a case, when appropriate.82
Lastly, we cannot deduce undue interest simply because Gonzales decision
differs from the decision of the PNP-IAS (which dismissed the complaint
against Mendoza). To be sure, we cannot tie the hands of any judicial or
quasi-judicial body by ruling that it should always concur with the decisions of
other judicial or quasi-judicial bodies which may have also taken cognizance
of the case. To do so in the case of a Deputy Ombudsman would be
repugnant to the independence that our Constitution has specifically granted
to this office and would nullify the very purpose for which it was created.
e. Penalty of dismissal totally
incommensurate with established facts
Given the lack of factual basis for the charges against Gonzales, the penalty
of removal imposed by the OP necessarily suffers grave infirmity. Basic
strictures of fair play dictate that we can only be held liable for our own
misdeeds; we can be made to account only for lapses in our responsibilities.
It is notable that of all the officers, it was Gonzales who took the least time
nine days followed by Cecilio, who took 21 days; Garcia the writer of
the draft took less than four months, and the Ombudsman, less than four
months until the kidnapping incident rendered Mendozas motion moot.
In these lights, the decision of the OP is clearly and patently wrong. This
conclusion, however, does not preclude the Ombudsman from looking into
any other possible administrative liability of Gonzales under existing Civil
Service laws, rules and regulations.
D. The Special Prosecutor: The Constitutional Issue
The 1987 Constitution created a new, independent Office of the
Ombudsman. The existing Tanodbayan at the time83 became the Office of
the Special Prosecutor under the 1987 Constitution. While the composition of
the independent Office of the Ombudsman under the 1987 Constitution does
not textually include the Special Prosecutor, the weight of the foregoing
discussions on the unconstitutionality of Section 8(2) of RA No. 6770 should
equally apply to the
Special Prosecutor on the basis of the legislative history of the Office of the
Ombudsman as expounded in jurisprudence.
Under the 1973 Constitution,84 the legislature was mandated to create the
Office of the Ombudsman, known as the Tanodbayan, with investigative and
prosecutorial powers. Accordingly, on June 11, 1978, President Ferdinand
Marcos enacted PD No. 1487.85
Under PD No. 1486,86 however, the "Chief Special Prosecutor" (CSP) was
given the "exclusive authority" to conduct preliminary investigation and to
prosecute cases that are within the jurisdiction of the Sandiganbayan.87 PD
No. 1486 expressly gave the Secretary of Justice the power of control and
supervision over the Special Prosecutor.88 Consistent with this grant of
power, the law also authorized the Secretary of Justice to appoint or detail to
the Office of the CSP "any officer or employee of Department of Justice or
any Bureau or Office under the executive supervision thereof" to assist the
Office of the CSP.
In December 1978, PD No. 160789 practically gave back to the Tanodbayan
the powers taken away from it by the Office of the CSP. The law "created in
the Office of the Tanodbayan an Office of the Chief Special Prosecutor"
under the Tanodbayans control,90 with the exclusive authority to conduct
preliminary investigation and prosecute all cases cognizable by the
Sandiganbayan. Unlike the earlier decree, the law also empowered the
Tanodbayan to appoint Special Investigators and subordinate personnel
and/or to detail to the Office of the CSP any public officer or employees who
"shall be under the supervision and control of the Chief Special
Prosecutor."91 In 1979, PD No. 1630 further amended the earlier decrees by
transferring the powers previously vested in the Special Prosecutor directly to
the Tanodbayan himself.92
This was the state of the law at the time the 1987 Constitution was ratified.
Under the 1987 Constitution, an "independent Office of the Ombudsman" is
created.93 The existing Tanodbayan is made the Office of the Special
Prosecutor, "who shall continue to function and exercise its powers as now94
or hereafter may be provided by law."95
Other than the Ombudsmans Deputies, the Ombudsman shall appoint all
other officials and employees of the Office of the Ombudsman.96 Section
13(8), Article XI of the 1987 Constitution provides that the Ombudsman may
exercise "such other powers or perform such functions or duties as may be
provided by law." Pursuant to this constitutional command, Congress
enacted RA No. 6770 to provide for the functional and structural organization
of the Office of the Ombudsman and the extent of its disciplinary authority.
In terms of composition, Section 3 of RA No. 6770 defines the composition of
the Office of the Ombudsman, including in this Office not only the offices of
the several Deputy Ombudsmen but the Office of the Special Prosecutor as
well. In terms of appointment, the law gave the President the authority to
appoint the Ombudsman, his Deputies and the Special Prosecutor, from a list
of nominees prepared by the Judicial and Bar Council. In case of vacancy in
these positions, the law requires that the vacancy be filled within three (3)
months from occurrence.97
The law also imposes on the Special Prosecutor the same qualifications it
imposes on the Ombudsman himself/herself and his/her deputies.98 Their
terms of office,99 prohibitions and qualifications,100 rank and salary are
likewise the same.101 The requirement on disclosure102 is imposed on the
Ombudsman, the Deputies and the Special Prosecutor as well. In case of
vacancy in the Office of the Ombudsman, the Overall Deputy cannot assume
the role of Acting Ombudsman; the President may designate any of the
Deputies or the Special Prosecutor as Acting Ombudsman.103 The power of
the Ombudsman and his or her deputies to require other government
agencies to render assistance to the Office of the Ombudsman is likewise
enjoyed by the Special Prosecutor.104
Given this legislative history, the present overall legal structure of the Office
of the Ombudsman, both under the 1987 Constitution and RA No. 6770,
militates against an interpretation that would insulate the Deputy
Ombudsman from the disciplinary authority of the OP and yet expose the
Special Prosecutor to the same ills that a grant of independence to the Office
of the Ombudsman was designed for.
Congress recognized the importance of the Special Prosecutor as a
necessary adjunct of the Ombudsman, aside from his or her deputies, by
making the Office of the Special Prosecutor an organic component of the
Office of the Ombudsman and by granting the Ombudsman control and N0. 1630 or grant it other powers, except those powers conferred by the
supervision over that office.105 This power of control and supervision Constitution on the Office of the Ombudsman.
includes vesting the Office of the Ombudsman with the power to assign
duties to the Special Prosecutor as he/she may deem fit.1wphi1 Thus, by Pursuing the present line of reasoning, when one considers that by express
constitutional design, the Special Prosecutor is by no means an ordinary mandate of paragraph 8, Section 13, Article XI of the Constitution, the
subordinate but one who effectively and directly aids the Ombudsman in the Ombudsman may "exercise such other powers or perform functions or duties
exercise of his/her duties, which include investigation and prosecution of as may be provided by law," it is indubitable then that Congress has the
officials in the Executive Department. power to place the Office of the Special Prosecutor under the Office of the
Ombudsman.107
Under Section 11(4) of RA No. 6770, the Special Prosecutor handles the
prosecution of criminal cases within the jurisdiction of the Sandiganbayan Thus, under the present Constitution, there is every reason to treat the
and this prosecutorial authority includes high-ranking executive officials. For Special Prosecutor to be at par with the Ombudsman's deputies, at least
emphasis, subjecting the Special Prosecutor to disciplinary and removal insofar as an extraneous disciplinary authority is concerned, and must also
powers of the President, whose own alter egos and officials in the Executive enjoy the same grant of independence under the Constitution.
Department are subject to the prosecutorial authority of the Special
Prosecutor, would seriously place the independence of the Office of the
III. SUMMARY OF VOTING
Ombudsman itself at risk.
In the voting held on January 28, 2014, by a vote of 8-7,108 the Court
Thus, even if the Office of the Special Prosecutor is not expressly made part resolved to reverse its September 4, 2012 Decision insofar as petitioner
of the composition of the Office of the Ombudsman, the role it performs as an
Gonzales is concerned (G.R. No. 196231). We declared Section 8(2) of RA
organic component of that Office militates against a differential treatment
No. 6770 unconstitutional by granting disciplinary jurisdiction to the President
between the Ombudsmans Deputies, on one hand, and the Special
over a Deputy Ombudsman, in violation of the independence of the Office of
Prosecutor himself, on the other. What is true for the Ombudsman must be
the Ombudsman.
equally true, not only for her Deputies but, also for other lesser officials of
that Office who act directly as agents of the Ombudsman herself in the
performance of her duties. However, by another vote of 8-7,109 the Court resolved to maintain the
validity of Section 8(2) of RA No. 6770 insofar as Sulit is concerned. The
Court did not consider the Office of the Special Prosecutor to be
In Acop v. Office of the Ombudsman,106 the Court was confronted with an constitutionally within the Office of the Ombudsman and is, hence, not
argument that, at bottom, the Office of the Special Prosecutor is not a entitled to the independence the latter enjoys under the Constitution.
subordinate agency of the Office of the Ombudsman and is, in fact, separate
and distinct from the latter. In debunking that argument, the Court said:
WHEREFORE, premises considered, the Court resolves to declare Section
8(2) UNCONSTITUTIONAL. This ruling renders any further ruling on the
Firstly, the petitioners misconstrue Commissioner Romulo's statement as dismissal of Deputy Ombudsman Emilio Gonzales III unnecessary, but is
authority to advocate that the intent of the framers of the 1987 Constitution without prejudice to the power of the Ombudsman to conduct an
was to place the Office of the Special Prosecutor under the Office of the
administrative investigation, if warranted, into the possible administrative
President. Xxx
liability of Deputy Ombudsman Emilio Gonzales III under pertinent Civil
Service laws, rules and regulations.
In the second place, Section 7 of Article XI expressly provides that the then
existing Tanodbayan, to be henceforth known as the Office of the Special SO ORDERED.
Prosecutor, "shall continue to function and exercise its powers as now or
hereafter may be provided by law, except those conferred on the Office of
the Ombudsman created under this Constitution." The underscored phrase
evidently refers to the Tanodbayan's powers under P.D. No. 1630 or
subsequent amendatory legislation. It follows then that Congress may
remove any of the Tanodbayan's/Special Prosecutor's powers under P.D.