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United States Supreme Court

POINDEXTER v. GREENHOW, (1885)


No. 20
Argued: Decided: April 20, 1885
[114 U.S. 270, 272] A. H. Garland, R. T. Merrick, and F. S. Blair,
Atty. Gen., for defendant in error.

Wm. L. Royall, D. H. Chamberlain, Wm. M. Evarts, and Wager


Swayne, for plaintiff in error. [114 U.S. 270, 273]

MATTHEWS, J.

The plaintiff in error, who was also plaintiff below, brought his
action in detinue on the twenty-sixth day of April, 1883, against
Samuel C. Greenhow, for the recovery of specific personal
property, to-wit, one office desk of the value of $30, before a
police justice in the city of Richmond, who dismissed the same for
want of Jurisdiction. An appeal was taken by the plaintiff to the
hustings court for the city of Richmond, where the facts were
found by agreement of parties to be as follows: That the plaintiff
was a resident of the city of Richmond, in the state of Virginia;
that he owed to the state of Virginia, for taxes on property owned
by him in said city for the year 1882, $12.45, which said t xes were
due and leviable for, under the laws of Virginia, on the first day of
December, 1882; that the defendant, Samuel C. Greenhow, was
the treasurer of the city of Richmond, and as such is charged by
law with the duty of collecting taxes due to the state of Virginia by
all residents of said city; that on the twenty-fifth day of April,
1883, the defendant, as such treasurer and collector of taxes,
made upon the plaintiff demand for the payment of the taxes due
by him to the state as aforesaid; that the plaintiff, when demand
was so made for payment of his taxes, tendered to the defendant
in payment thereof 45 cents in lawful money of the United States,
and coupons issued by the state of Virginia under the provisions
of the act of the general assembly of that state of March 30, 1871,
entitled 'An act to provide for the funding and payment of the
public debt;' that said coupons so tendered by plaintiff were all
due and past maturity, and amounted in the aggregate to $12, and
were all cut from bonds issued by the said state of Virginia under
the provisions of the said act of March 30, 1871; that the said
coupons and money so tendered by the plaintiff amounted
together to exactly the sum so due the state by the plaintiff for
taxes; that the defendant refused to receive the said coupons and
money so tendered in payment of the plaintiff's taxes; that the
defendant, after said tender was made, as he deemed himself
required to do by the acts of assembly of Virginia, entered the
plaintiff's place of business in said city, [114 U.S. 270, 274] and
levied upon, and took possession of the desk, the property of the
plaintiff now sued for, for the purpose of selling the same to pay
the taxes due from him; and that the said desk is of the value of
$30, and still remains in possession of the defendant for the
purpose aforesaid, he having refused to return the same to the
plaintiff on demand.

The hustings court was of the opinion that the police justice erred
in deciding that he had no jurisdiction, and that the issue in the
action might have been tried by him, and that it should be tried by
that court on the appeal; but it was also of the opinion that in
tendering to the defendant, as part of the tender in payment of the
plaintiff's taxes, the coupons mentioned and described, the
plaintiff did not tender what the law required, nor what the
defendant was, as treasurer, obliged to or should have received in
payment of the plaintiff's taxes, under the provisions of the act of
the general assembly ov Virginia, approved January 26, 1882,
entitled 'An act to provide for the more efficient collection of the
revenue to support government, maintain the public schools, and
to pay interest on the public debt;' that the plaintiff's remedy for
the failure of the defendant, as treasurer, to receive coupons in
payment of taxes, was to be found in the provisions of said act of
January 26, 1882; and that, therefore, the defendant does not
unlawfully or wrongfully detain the plaintiff's property levied on
by the defendant, as treasurer of the city of Richmond, for the
plaintiff's taxes; and judgment was accordingly rendered for the
defendant.

It appears from the record that there was drawn in question the
validity of the said act of the general assembly of Virginia,
approved January 26, 1882, and of the eighteenth section of the
act of the general assembly of the state of Virginia, approved April
1, 1879, which authorizes the collection of delinquent taxes by
distraint of personal property, upon the ground that these acts are
repugnant to section 10 of article 1 of the constitution of the
United States, which declares that no state shall pass any law
impairing the obligation of contracts, the judgment of the court
being in favor of the validity of said acts and against the rights
claimed by the plaintiff under the [114 U.S. 270,
275] constitution of the United States. The hustings court is the
highest court of the state to which the said cause could be taken.

The act of January 26, 1882, the validity of which is thus


questioned, is as ollows:

'Be it enacted by the general assembly of the state of Virginia, that


the several tax collectors of this commonwealth shall receive, in
discharge of the taxes, license taxes, and other dues, gold, silver,
United States treasury notes, national bank currency, and nothing
else; provided that in all cases in which an officer charged by law
with the collection of revenue due the state, shall take any steps
for the collection of same, claimed to be due from any citizen or
tax-payer, such person against whom such step is taken, if he
conceives the same to be unjust or illegal, or against any statute,
or to be unconstitutional, may pay the same under protest, and
under such payment the officer collecting the same shall pay such
revenue into the state treasury, giving notice at the time of such
payment to the treasurer that the same was paid under protest.
The person so paying such revenue may, at any time within 30
days after making such payment, and not longer thereafter, sue
the said officer so collecting such revenue in the court having
jurisdiction of the parties and amounts.
'If it be determined that the same was wrongfully collected, for
any reason going to the merits of the same, then the court trying
the case may certify of record that the same was wrongfully paid
and ought to be refunded; and, thereupon, the auditor of public
accounts shall issue his proper warrant for the same, which shall
be paid in preference to other claims on the treasury, except such
as have priority by constitutional requirement.
'There shall be no other remedy in any case of the collection of
revenue, or the attempt to collect revenues illegally, or the
attempt to collect revenue in funds only receivable by said officers
under this law, the same being other and different funds than the
tax-payer may tender or claim the right to pay, than such as are
herein provided; and no writ for the prevention of any revenue
claim, or to hinder or delay the collection [114 U.S. 270, 276] of
the same, shall in anywise issue, either injunction, supersedeas,
mandamus, prohibition, or any other writ or process whatever;
but in all cases, if, for any reason, any person shall claim that the
revenue so collected of him was wrongfully or illegally collected,
the remedy for such person shall be as above provided, and in no
other manner. In all such cases If the court certify of record that
the officer defendant acted in good faith and diligently defended
the action, the necessary costs incurred by him shall be taxed to
and paid by the state, as in criminal cases. The commonwealth
attorney for the county or corporation in which suit is brought,
shall appear and represent the defense. In every case where
judgment is rendered for the defendant, a fee of five dollars shall
be taxed in favor of said attorney and against the plaintiff; and
whenever the court shall refuse to certify the good faith and
diligence of the officer defending the case, a like fee of five dollars
shall be taxed against said officer. Any officer charged with the
collection of revenue, who shall receive payment thereof in
anything other than that hereinbefore provided, shall be deemed
guilty of a misdemeanor, and fined not less than one hundred nor
more than five hundred dollars, in the discretion of the court; but
nothing herein contained shall be construed to subject any officer
of the state to any suit, other than as hereinbefore provided, for
any refusal on his part to accept in payment of revenue due the
state any kind or description of funds, security, or paper not
authorized by this act.
'(2) This act shall be in force from and after the first day of
December, eighteen hundred and eighty-two.'
The eighteenth section of the act of April 1, 1879, (Acts 1878-79, p.
318,) so far as material, is that 'it shall be the duty of the treasurer,
after the first day of December, to call upon each person
chargeable with taxes and levies, who has not paid the same prior
to that time, or upon the agent of such person resident within the
county or corporat on, and, upon failure or refusal of such person
or agent to pay the same, he shall proceed to collect by distress or
otherwise.' Goods and chattels distrained by an officer, by
provisions of other statutes then in force, were required to be sold
at public sale after due notice, as prescribed. [114 U.S. 270,
277] The act of January 26, 1882, was amended by an act which
was passed and took effect March 13, 1884, by the addition of the
following sections:

'Sec. 2. Whenever any papers, purporting to be coupons cut from


bonds of this state, shall be tendered to the collecting officer in
payment of any taxes due to the state by any party desiring to
bring a suit under this statute, it shall be the duty of the collecting
officer to place the coupons so tendered in an envelope, to seal the
said envelope, write his name across the seal thereof, indorse it
with the numbers of the coupons inclosed, and return it to the
taxpayer. Upon the trial of any proceeding under this act, the said
coupons, inclosed in the said envelope so sealed and indorsed,
must be produced in evidence to prove the tender. If the court
shall certify that the money paid under protest ought to be
refunded, the said coupons shall be delivered to the auditor of
public accounts, to be canceled simltaneously with the issue of his
warrant.
'Sec. 3. No action of trespass or trespass on the case shall be
brought or maintained against any collecting officer for levying
upon the property of any tax-payer who may have tendered in
payment, in whole or in part, any coupon, or paper purporting to
be a coupon, cut from bonds of this state for such taxes, and who
shall refuse to pay his taxes in gold, silver, United States treasury
notes, or national bank-notes. The suit contemplated by this act
shall be commenced by a petition filed at rules, upon which a
summons shall be issued to the collecting officer; and the said suit
shall be regularly matured like other actions at law, and the
coupons tendered shall be filed with said petition.'
The contract which the plaintiff in error alleges has been violated
is with the state of Virginia, and is contained in the act of March
30, 1871, known as the 'Funding Act.' entitled 'An act to provide
for the funding and payment of the public debt,' and in the bonds
and coupons issued under its authority. It provided for the
funding of two-thirds of the existing state debt, and of two-thirds
of the interest accrued thereon to July 1, 1871, in new 6 per cent.
bonds, to run 34 years, the bonds, coupon or registered, payable
to [114 U.S. 270, 278] order or bearer, and the coupons to bearer,
and declared that the coupons should be payable semi-annually,
and 'be receivable at and after maturity for all taxes, debts, dues,
and demands due the state,' and that this should be expressed on
their face. For the remaining one-third, certificates were to be
issued to the creditors to hold as claims against the state of West
Virginia, that being assumed as her just proportion of the entire
debt. 'Under this act,' it was said by this court, in Hartman v.
Greenhow, 102 U.S. 672 , 679, 'a large number of the creditors of
the state, holding bonds amounting, including interest thereon, to
about thirty millions of dollars, surrendered them and took new
bonds with interest coupons annexed for two-thirds of their
amount, and certificates for the balance. A contract was thus
consummated between the state and the holders of the new bonds
and the holders of the coupons, from the obligation of which she
could not, without their consent, release herself by any
subsequent legislation. She thus bound herself, not only to pay the
bonds when they became due, but to receive the interest coupons
from the bearer at and after their maturity, to their full amount,
for any taxes or dues by him to the state. This receivability of the
coupons for such taxes and dues was written on their face, and
accompanied them in whatever hands they passed. It constituted
their chief value, and was the main consideration offered to the
holders f the old bonds to surrender them and accept new bonds
for two-thirds of their amount.'

The same view had been taken by the supreme court of appeals of
Virginia in the cases of Antoni v. Wright, 22 Grat. 833; Wise v.
Rogers, 24 Grat. 169; and Clarke v. Tyler, 30 Grat. 134; in the last
of which cases it was declared to be the settled law of the state. It
was repeated by this court in Antoni v. Greenhow, 107 U.S. 769 ,
S. C. 2 SUP. CT. REP. 91, where it was said, (page 775:) 'The right
of the coupon-holder is to have his coupon received for taxes
when offered;' and (page 771) 'any act of the state which forbids
the receipt of these coupons for taxes is a violation of the contract,
and void as against coupon-holders.' Upon these propositions
there was an entire agreement between the majority and minority
of the court in that case. [114 U.S. 270, 279] The nature and value
of this contract right to the coupon-holder deserve to be further
explained. It was evidently a part of the consideration on which
the creditors of the state were induced to accept, under the act of
March 30, 1871, from the state of Virginia, new obligations for
two-thirds of their claim, in exchange for the surrender of the
original bonds. The latter depended for their payment, as to both
principle and interest, upon the continued good faith of the state
in making, from time to time, necessary appropriations out of the
public treasury, to meet its recurring liabilities, by positive
legislation to that effect. In case of default, there was no remedy
by legal process. The state itself could not be sued. Its bare
promises to pay had no sanction but the public sense of duty to
the public creditors. The only security for their performance was
the public faith.

But immediately on the passage of the act of March 30, 1871, and
thereafter, occasional or continued default in the payment of
interest on the bonds issued in pursuance of its provisions by
reason of failures to provide by laws necessary appropriations for
its payment, was met, if not obviated, by a self-executing remedy
lodged by the law in the hands of the creditor himself. For, from
that time it became the legal duty of every tax collector to receive
coupons from these bonds, offered for that purpose by tax-payers,
in payment of taxes, upon an equal footing, at an equal value, and
with equal effect, as though they were gold or silver or legal-
tender treasury notes. They were by that act reduced, in effect,
into money, and, as between the state and its tax-payers, were a
legal tender as money. And, being not only a law, but a contract, it
became, by force of the constitution of the United States,
irrepealable, and therefore is to-day, what it was when first
enacted, the unchangeable law of Virginia. After a tender of such
coupons by a tax-payer in payment of taxes, and a refusal by a tax
collector to receive them, the situation and rights of the tax-payer
and coupon-holder were precisely what they would have been if
he had made a like tender in gold coin and it had been refused.
What they would be we shall have occasion presently to inquire.
In the mean time, it is clear that the con- [114 U.S. 270, 280] tract
obligation embodied in the quality imparted by law to these
coupons, of being receivable in payment of taxes, is a distinct,
collateral, and real security, placed in the hands of the creditor,
intended to enable him to collect them without process of law. As
long as the annual taxes of the state are sufficient in amount to
absorb all coupons that are overdue and unpaid, a certain market
is created for them which will maintain them at or near their par
value. In the hands of the tax-payer who buys them for tender,
they are practically no longer choses in action, but equal in value
and quality to money, and equivalent to receipts for taxes already
paid.

At the time of the passage of the act of March 30, 1871, there
existed a remedy by mandamus, in case a tax collector refused to
receive the coupons, issued under that act tendered in payment of
taxes, to compel him specifically to do so. The case of Hartman v.
Greenhow, 102 U.S. 672 , was one in which that relief was
administered; and in Antoni v. Greenhow, 107 U.S. 769 , S. C. 2
SUP. CT. REP. 91, it is stated to have been the settled practice of
the supreme court of appeals of Virginia to entertain suits for
similar relief. By an act of January 14, 1882, the general assembly
of that state modified the proceedings in mandamus is such cases
so as to require the tax-payer first to pay his taxes in money, and
then the coupons endered having, in another proceeding, been
determined to be genuine, he was entitled to a judgment upon the
mandamus, requiring them to be received in payment of the taxes,
and the money previously paid refunded. The validity of this act
became the question in Antoni v. Greenhow, ubi supra, and it was
affirmed on the ground that, for the purpose of specifically
enforcing the right to have the coupons received in payment of
taxes, the new remedy was substantially equivalent to the old one.
The court were not willing to decide that it was a suit against the
state in which the mode of proceeding could be modified, or the
remedy taken away altogether, at the pleasure of the state. And it
affirmed the right of the coupon-holder to have his coupon
received for taxes when offered. 'The question here,' said the
court, 'is not as to that right, but as to the remedy the holder has
for its enforcement when denied.' 'The ques- [114 U.S. 270,
281] tion,' said the chief justice, delivering the opinion of the
court, 'we are now to consider is not whether, if the coupon
tendered is in fact genuine and such as ought under the contract
to be received, and the tender is kept good, the treasurer can
proceed to collect the tax by distraint, or such other process as the
law allows, without making himself personally responsible for any
trespass he may commit, but whether the act of 1882 violates any
implied obligation of the state in respect to the remedies that may
be employed for the enforcement of its contract, if the collector
refuses to take the coupon.'

That was a case in which it was sought, by mandamus, specifically


to enforce the contract of the state with the coupon-holder, by
compelling, by affirmative action and process of law the collector
actually to receive the coupons tendered in satisfaction of taxes. It
left unaffected the right of the coupon-holder and tax-payer, after
his tender had been unlawfully refused, to stand upon his contract
and the law, in defense of his rights, both of person and property,
against all unlawful assaults and seizures. In the former he was an
actor, seeking affirmative relief, to compel the specific
performance of the contract. In the latter he is a defendant,
passively resting on his rights, and resisting olny demands and
exactions sought to be enforced against him in denial of them. He
has himself, in all things, performed the contract on his part, and
obeyed the law, and simply insists that if more is illegally exacted
and taken from him, he shall have the remedy which the law gives
to every other citizen, not himself in default, against the
wrongdoer, who, under color of law, but without law, disturbs or
dispossesses him. As we have seen, the coupon- holder, whose
tender of genuine coupons in payment of taxes has been refused,
stands upon the same footing, in this respect, as though he had
tendered gold coin in similar circumstances and with like result.

The question next in order is whether he has any, and, if any, what
remedy for the recovery of property distrained to pay the same tax
which he has thus already offered and attempted to pay in money
or its equivalent. It is well settled by many decisions of this court
that, for the purpose of affect- [114 U.S. 270, 282] ing
proceedings to enforce the payment of taxes, a lawful tender of
payment is equivalent to actual payment, either being sufficient to
deprive the collecting officer of all authority for further action,
and making every subsequent step illegal and void. In Woodruff v.
Trapnall, 10 How. 190, 208, it was held that a tender of the notes
of the bank of the state of Arkansas, by law and a contract with the
note holders made receivable in payment of public dues to the
state, was equivalent to payment, in extinguishing the judgment
in satisfaction of which they were offered. The court said: 'The law
of tender which avoids future interest and costs has no application
in this case. The right to make payment to the state in this paper
arises out of a continuing contract, which is limited in time by the
circulation of the notes to be received They may be offered in
payment of debts due to the state, in its own right, before or after
judgment, and without regard to the cause of indebtment.' In the
case of U. S. v. Lee, 106 U.S. 196 , S. C. 1 SUP. CT. REP. 240, it
was held that a certificate of a sale of land for taxes, made by
commissioners, which by law was rendered impeachable by proof
that the taxes had been paid previous to sale, was rendered void
by proof that the commissioners had refused to receive the taxes,
without proof of an actual tender, where the commissioners had
waived it by a previous notice that they would not accept it. In the
opinion of the court it is said: 'This court has, in a series of cases,
established the proposition that where the commissioners refused
to receive such taxes, their action in thus preventing payment was
the equivalent of payment in its effect upon the certificate of sale;'
citing Bennett v. Hunter, 9 Wall. 326; Tacey v. Irwin, 18 Wall.
549; Atwood v. Weems, 99 U.S. 183 ; and Hills v. Exchange
Bank, 105 U.S. 319 .

The case, then, of the plaintiff below is reduced to this: He had


paid the taxes demanded of him by a lawful tender. The defendant
had no authority of law thereafter to attempt to enforce other
payment by seizing his property. In doing so he ceased to be an
officer of the law, and became a private wrongdoer. It is the
simple case in which the defendant, a natural private person, has
unlawfully, with force and arms, seized, [114 U.S. 270,
283] taken, and detained the personal property of another. That
an action of detinue will lie in such a case, according to the law of
Virginia, has not been questioned. The right of recovery would
seem to be complete, unless this case can be met and overthrown
on some of the grounds maintained in argument by counsel for
the defendant in error. These we proceed now to examine in their
order.

It is objected, in the first place, that the law and contract, by


which the quality of being receivable in payment of taxes to the
state is imputed to the coupons, is itself in violation of that clause
of the constitution of the United States (article 1, 10) which
declares that no state shall 'emit bills of credit,' and is therefore
void. The coupons in question are in the ordinary form, and one of
them reads as follows:

'Receivable at and after maturity for all taxes, debts, and demands
due the state.
'The commonwealth of Virginia will pay the bearer thirty dollars,
interest due first January, 1884, on bond No. 2,731.
'Coupon No. 20.
GEO. RYE, Treasurer.'

It is contended that this is a bill of credit in the sense of the


constitution, because, being receivable in payment of debts due
the state, and negotiable by delivery merely, it was intended to
pass from hand to hand and circulate as money. The meaning of
the term 'bills of credit,' as used in the constitution, has been
settled by decisions of this court. By a sound rule of interpretation
it has been construed in the light of the historical circumstances
which are known to have led to the adoption of the clause
prohibiting their emission by the states, and in view of the great
public and private mischiefs experienced during and prior to the
period of the war of independence, in consequence of
unrestrained issues, by the colonial and state governments, of
paper money, based alone upon credit. The definition thus
deduced was not founded on the abstract meaning of the words,
so as to include everything in the [114 U.S. 270, 284] nature of an
obligation to pay money, reposing on the public faith, and subject
to future redemption, but was limited to those particular forms of
evidences of debt which had been so abused to the detriment of
both private and public interests. Accordingly, Chief Justice
MARSHALL, in Craig v. Missouri, 4 Pet. 410, 432, said that 'bills
of credit signify a paper medium intended to circulate between
individuals, and between government and individuals, for the
ordinary purposes of society.' This definition was made more
exact by merely expressing, however, its implications, in Briscoe
v. Bank of Kentucky, 11 Pet. 257, 314, where it was said: 'The
definiion, then, which does include all classes of bills of credit,
emitted by the colonies or states, is a paper issued by the
sovereign power, containing a pledge of its faith and designed to
circulate as money.' And again, page 318: 'To constitute a bill of
credit, within the constitution, it must be issued by a state, on the
faith of the state, and be designed to circulate as money. It must
be a paper which circulates on the credit of the state, and is so
received and used in the ordinary business of life.' The definition
was repeated in Darrington v. Bank of Alabama, 13 How. 12.

It is very plain to us that the coupons in question are not


embraced within these terms. They are not bills of credit in the
sense of this constitutional prohibition. They are issued by the
state,

It is very plain to us that the coupons pay money. Their payment


and redemption are based on the credit of the state, but they were
not emitted by the state in the sense in which a government emits
its treasury notes, or a bank its bank-notes-a circulating medium
or paper currency-as a substitute for money. And there is nothing
on the face of the instruments, nor in their form or nature, nor in
the terms of the law which authorize their issue, nor in the
circumstances of their creation or use, as shown by the record, on
which to found an inference that these coupons were designed to
circulate in the common transactions of business, as money, nor
that in fact they were so used. The only feature relied on to show
such a design or to prove such a use is that they are made
receivable in payment of taxes and other dues to the state. From
this, [114 U.S. 270, 285] it is argued that they would obtain such
a circulation from hand to hand as money as the demand for
them, based upon such a quality, would naturally give. But this
falls far short of their fitness for general circulation in the
community, as a representative and substitute for money, in the
common transactions of business, which is necessary to bring
them within the constitutional prohibition against bills of credit.
The notes of the bank of the state of Arkansas, which were the
subject of controversy in Woodruff v. Trapnall, 10 How. 190, were,
by law, receivable by the state in payment of all dues to it, and this
circumstance was not supposed to make them bills of credit. It is
true, however, that in that case it was held they were not so
because they were not issued by the state and in its name,
although the entire stock of the bank was owned by the state,
which furnished the whole capital, and was entitled to all the
profits. In this case the coupons were issued by the state of
Virginia and in its name, and were obligations based on its credit,
and which it had agreed, as one mode of redemption, to receive in
payment of all dues to itself in the hands of any holder; but they
were not issued as and for money, nor was this quality impressed
upon them to fit them for use as money, or with the design to
facilitate their circulation as such. It was conferred, as is apparent
from all the circumstances of their creation and issue, merely as
an assurance, by way of contract with the holder, of the certainty
of their due redemption in the ordinary transactions between the
state treasury nd the tax-payers. They do not become receivable in
payment of taxes till they are due, and the design, we are bound to
presume, was that they would be paid at maturity. This
necessarily excludes the idea that they were intended for
circulation at all.

It is next objected that the suit of the plaintiff below could not be
maintained, because it is substantially an action against the state
of Virginia, to which it has not assented. It is said that the tax
collector who is sued, was an officer and agent of the state,
engaged in collecting its revenue under a valid law, and that the
tax he sought to collect from the plaintiff was lawfully due; that,
consequently, he was guilty of no personal wrong, but acted only
in an official capacity representing [114 U.S. 270, 286] the state,
and, in refusing to receive the coupons tendered, simply obeyed
the commands of his principal whom he was lawfully bound to
obey; and that if any wrong has been done, it has been done by the
state in refusing to perform its contract, and for that wrong the
state is alone liable, but is exempted from suit by the eleventh
article of amendment to the constitution of the United States,
which declares that 'the judicial power of the United States shall
not be construed to extend to any suit in law or equity,
commenced or prosecuted against one of the United States by
citizens of another state, or by citizens or subjects of any foreign
state.'

This immunity from suit secured to the states, is undoubtedly a


part of the constitution of equal authority with every other, but no
greater, and to be construed and applied in harmony with all the
provisions of that instrument. That immunity, however, does not
exempt the state from the operation of the constitutional
provision that no state shall pass any law impairing the obligation
of contracts; for it has long been settled that contracts between a
state and an individual are as fully protected by the constitution
as contracts between two individuals. It is true that no remedy for
a breach of its contract by a state, by way of damages as
compensation, or by means of process to compel its performance,
is open under the constitution in the courts of the United States
by a direct suit against the state itself, on the part of the injured
party, being a citizen of another state, or a citizen or subject of a
foreign state. But it is equally true that whenever, in a controversy
between parties to a suit, of which these courts have jurisdiction,
the question arises upon the validity of a law by a state impairing
the obligation of its contract, the jurisdiction is not thereby
ousted, but must be exercised with whatever legal consequences
to the rights of the litigants, may be the result of the
determination. The cases establishing these propositions, which
have been decided by this court since the adoption of the eleventh
amendment to the constitution, are numerous. Fletcher v. Peck, 6
Cranch, 87; New Jersey v. Wilson, 7 Cranch, 164; Green v. Biddle,
8 Wheat. 1, 84; Providence Bank v. Billings, 4 Pet. 514; Woodruff
v. Trapnall, 10 [114 U.S. 270, 287] How. 190; Wolff v. New
Orleans, 103 U.S. 358 ; Jefferson Branch Bank v. Skelly, 1 Black,
436.

It is also true that the question whether a suit is within the


prohibiting of the eleventh amendment is not always determined
by reference to the nominal parties on the record. The provision is
to be substantially applied in furtherance of its intention, and not
to be evaded by technical and trivial subtleties. Accordingly, it was
held in New Hampshire v. Louisiana, and New York v.
Louisiana, 108 U.S. 76 , S. C. 2 SUP. CT. REP. 176, that, although
the judicial power of the United States extends to 'controversies
between two or more states,' it did not embrace a suit in which,
although nominally between two states, the plaintiff state had
merely permitted the use of its name for the benefit of its citizens
in the prosecution of their claims, for the enforcement of which
they ould not sue in their own names. So, on the other hand, in
Cunningham v. Macon & B. R. Co. 109 U.S. 446 , S. C. 3 SUP. CT.
REP. 292, 609, where the state of Georgia was not nominally a
party on the record, it was held that, as it clearly appeared that the
state was so interested in the property that final relief could not be
granted without making it a party, the court was without
jurisdiction. In that case, the general question was discussed in
the light of the authorities, and the cases in which the court has
taken jurisdiction, when the objection has been interposed, that a
state was a necessary party to enable the court to grant relief, were
examined and classified. The second head of that classification is
thus described: 'Another class of cases is where an individual is
sued in tort for some act injurious to another in regard to person
or property, to which his defense is that he has acted under the
orders of the government. In these cases he is not sued as, or
because he is, the officer of the government, but as an individual,
and the court is not ousted of jurisdiction because he asserts
authority as such officer. To make out his defense he must show
that his authority was sufficient in law to protect him.' And in
illustration of this principle reference was made to Mitchell v.
Harmony, 13 How. 115; Bates v. Clark, 95 U.S. 204 ; Meigs v.
McClung's Lessee, 9 Cranch, 11; Wilcox v. Jackson, 13 Pet. 498;
Brown v. Huger, 21 How. 315; [114 U.S. 270, 288] Grisar v.
McDowell, 6 Wall. 363; and U. S. v Lee, 106 U.S. 196 ; S. C. 1 SUP.
CT. REP. 240.

The ratio decidendi in this class of cases is very plain. A defendant


sued as a wrong-doer, who seeks to substitute the state in his
place, or to justify by the authority of the state, or to defend on the
ground that the state has adopted his act and exonerated him,
cannot rest on the bare assertion of his defense. He is bound to
establish it. The state is a political corporate body, can act only
through agents, and can command only by laws. It is necessary,
therefore, for such a defendant, in order to complete his defense,
to produce a law of the state which constitutes his commission as
its agent, and a warrant for his act. This the defendant, in the
present case, undertook to do. He relied on the act of January 26,
1882, requiring him to collect taxes in gold, silver, United States
treasury notes, national bank currency, and nothing else, and thus
forbidding his receipt of coupons in lieu of money. That, it is true,
is a legislative act of the government of Virginia, but it is not a law
of the state of Virginia. The state has passed no such law, for it
cannot; and what it cannot do, it certainly, in contemplation of
law, has not done. The constitution of the United States, and its
own contract, both irrepealable by any act on its part, are the law
of Virginia; and that law made it the duty of the defendant to
receive the coupons tendered in payment of taxes, and declared
every step to enforce the tax, thereafter taken, to be without
warrant of law, and therefore a wrong. He stands, then, stripped
of his official character, and, confessing a personal violation of the
plaintiff's rights, for which he must personally answer, he is
without defense.

No better illustration of this principle can be found than than


which is furnished by the case of U. S. v. Lee, 106 U.S. 196 , S. C. 1
SUP. CT. REP. 240, in which it was applied to a claim made on
behalf of the national government. The action was one in
ejectment, to recover possession of lands, to which the plaintiff
claimed title. The defendants were natural persons, whose defense
was that they were in possession as officers of the United States
under the orders of the government and for its [114 U.S. 270,
289] uses. The attorney general called this aspect of the case to
the attention of the court, but without making the United States a
party defendant. It was decided by this court that to sustain the
defense, and to d feat the plaintiff's cause of action, it was
necessary to show that the defendants were in possession under
the United States, and on their behalf, by virtue of some valid
authority. As this could not be shown, the contrary clearly
appearing, possession of lands, actually in use as a national
cemetery, was adjudged to the plaintiffs. The decision in that case
was rested largely upon the authority of Osborn v. Bank of U. S. 9
Wheat. 738, which was a suit in equity against an officer of the
state of Ohio, who sought to enforce one of her statutes which was
in violation of rights secured to the bank by the constitution of the
United States. The defendants, Osborn and others, denied the
jurisdiction of the court, upon the ground that the state was the
real party in interest and could not be sued, and that a suit against
her officers, who were executing her will, was in violation of the
eleventh amendment of the constitution. To this objection, Chief
Justice MARSHALL replied: 'If the state of Ohio could have been
made a party defendant, it can scarcely be denied that this would
be a strong case for an injunction. The objection is that, as the real
party cannot be brought before the court, a suit cannot be
sustained against the agents of that party; and cases have been
cited to show that a court of chancery will not make a decree
unless all those who are substantially interested be made parties
to the suit. This is certainly true where it is in the power of the
plaintiff to make them parties; but if the person who is the real
principal,-the person who is the true source of the mischief, by
whose power and for whose advantage it is done, be himself above
the law, be exempt from all judicial process, it would be
subversive of the best- established principles to say that the laws
could not afford the same remedies against the agent employed in
doing the wrong which they would afford against him could his
principal be joined in the suit.' This language, it may be observed,
was quoted with approval in U. S. v. Lee. The principle which it
enunciates con- [114 U.S. 270, 290] stitutes the very foundation
upon which the decision in that case rested.

In the discussion of such questions, the distinction between the


government of a state and the state itself is important, and should
be observed. In common speech and common apprehension they
are usually regarded as identical; and as ordinarily the acts of the
government are the acts of the state, because within the limits of
its delegation of power, the government of the state is generally
confounded with the state itself, and often the former is meant
when the latter is mentioned. The state itself is an ideal person,
intangible, invisible, immutable. The government is an agent, and,
within the sphere of the agency, a perfect representative; but
outside of that, it is a lawless usurpation. The constitution of the
state is the limit of the authority of its government, and both
government and state are subject to the supremacy of the
constitution of the United States, and of the laws made in
pursuance thereof. So that, while it is true in respect to the
government of a state, as was said in Langford v. U. S. 101 U.S.
341 , that the maxim, that the king can do no wrong, has no place
in our system of government; yet it is also true, in respect to the
state itself, that whatever wrong is attempted in its name is
imputable to its government, and not to the state, for, as it can
speak and act only by law, whatever it does say and do must be
lawful. That which, therefore, is unlawful because made so by the
supreme law, the constitution of the United States, is not the word
or deed of the state, but is the mere wrong and trespass of those
individual persons who falsely speak and act in its name. It was
upon the ground of this important distinction that this court
proceeded in the case of Texas v. White, 7 Wall. 700, when it
adjudged that the acts of secession, which constituted the civil war
of 1861, were the unlawful acts of usurping state governments,
and not the acts of the states themselves, inasmuch as 'the
constitution, in all its provisions, looks to an indestructible Union,
composed of indestructible states;' and that, consequently, the
war itself was not a war between the states, nor a war of the
United States against states, but a war of the United States
against [114 U.S. 270, 291] unlawful and usurping governments,
representing not the states, but a rebellion against the United
States. This is, in substance, what was said by Chief Justice
CHASE, delivering the opinion of the court in Thorington v.
Smith, 8 Wall. 1, 9, when he declared, speaking of the confederate
government, that 'it was regarded as simply the military
representative of the insurrection against the authority of the
United States.' The same distinction was declared and enforced in
Williams v. Bruffy, 96 U.S. 176 , 192, and in Horn v. Lockhart, 17
Wall. 570, both of which were referred to and approved in Keith v.
Clark, 97 U.S. 454 , 465.
This distinction is essential to the idea of constitutional
government. To deny it or blot it out obliterate the line of
demarcation that separates constitutional government from
absolutism, free self- government based on the sovereignty of the
people from that despotism, whether of the one or the many,
which enables the agent of the state to declare and decree that he
is the state; to say 'L'Etat, c'est moi.' Of what avail are written
constitutions, whose bills of right, for the security of individual
liberty, have been written too often with the blood of martyrs shed
upon the battle-field and the scaffold, if their limitations and
restraints upon power may be overpassed with impunity by the
very agencies created and appointed to guard, defend, and enforce
them; and that, too, with the sacred authority of law, not only
compelling obedience, but entitled to respect? And how else can
these principles of individual liberty and right be maintained, if,
when violated, the judicial tribunals are forbidden to visit
penalties upon individual offenders, who are the instruments of
wrong, whenever they interpose the shield of the state? The
doctrine is not to be tolerated. The whole frame and scheme of the
political institutions of this country, state and federal, protest
against it. Their continued existence is not compatible with it. It is
the doctrine of absolutism, pure, simple, and naked, and of
communism which is its twin, the double progeny of the same evil
birth.

It was said by Chief Justice CHASE, speaking for the whole court
in Lane Co. v. Oregon, 7 Wall. 71, 76, that the peo- [114 U.S. 270,
292] ple, through the constitution of the United States,
'established a more perfect union by substituting a national
government, acting, with ample power, directly upon the citizens,
instead of the confederate government, which acted with powers,
greatly restricted, only upon the states.' In no other way can the
supremacy of that constitution be maintained. It creates a
government in fact as well as in name, because its constitution is
the supreme law of the land, 'anything in the constitution or laws
of any state to the contrary notwithstanding;' and its authority is
enforced by its power to regulate and govern the conduct of
individuals, even where its prohibitions are laid only upon the
states themselves. The mandate of the state affords no
justification for the invasion of rights secured by the constitution
of the United States; otherwise, that constitution would not be the
supreme law of the land. When, therefore, an individual
defendant pleads a statute of a state, which is in violation of the
constitution of the United States, as his authority for taking or
holding property, to which the citizen asserts title, and for the
protection or possession of which he appeals to the courts, to say
that the judicial enforcement of the supreme law of the land, as
between the individual parties, is to coerce the state, ignores the
fundamental principles on which the constitution rest , as
contrasted with the articles of confederation, which it displaced,
and practically makes the statutes of the states the supreme law of
the land within their respective limits.

When, therefore, by the act of March 30, 1871, the contract was
made, by which it was agreed that the coupons issued under that
act should thereafter be receivable in payment of taxes, it was the
contract of the state of Virginia, because, though made by the
agency of the government, for the time being, of the state, that
government was acting within the scope of its authority, and
spoke with its voice as its true representative; and inasmuch as, by
the constitution of the United States, which is also the supreme
law of Virginia, that contract, when made, became thereby
unchangeable and irrepealable by the state, the subsequent act of
January 26, 1882, and all other like acts, which deny the
obligation of that* con- [114 U.S. 270, 293] tract and forbid its
performance, are not the acts of the state of Virginia. The true and
real commonwealth which contracted the obligation is incapable
in law of doing anything in derogation of it. Whatever having that
effect, if operative, has been attempted or done, is the work of its
government acting without authority, in violation of its
fundamental law, and must be looked upon, in all courts of
justice, as if it were not and never had been. The argument,
therefore, which seeks to defeat the present action, for the reason
that it is a suit against the state of Virginia, because the nominal
defendant is merely its officer and agent, acting in its behalf, in its
name, and for its interest, and amenable only to it, falls to the
ground, because its chief postulate fails. The state of Virginia has
done none of these things with which this defense charges her.
The defendant in error is not her officer, her agent, or her
representative, in the matter complained of; for he has acted not
only without her authority, but contrary to her express
commands. The plaintiff in error, in fact and in law, is
representing her as he seeks to establish her law, and vindicates
her integrity as he maintains his own right.

Tried by every test which has been judicially suggested for the
determination of the question, this cannot be considered to be a
suit against the state. The state is not named as a party in the
record; the action is not directly upon the contract; it is not for the
purpose of controlling the discretion of executive officers, or
administering funds actually in the public treasury, as was held to
be the case in Louisiana v. Jumel, 107 U.S. 711 ; S. C. 2 SUP. CT.
REP. 128; it is not an attempt to compel officers of the state to do
the acts which constitute a performance of its contract by the
state, as suggested by a minority of the court in Antoni v.
Greenhow, 107 U.S. 769 , 783; S. C. 2 SUP. CT. REP. 91; nor is it a
case where the state is a necessary party, that the defendant may
be protected from liability to it, after having answered to the
present plaintiff. For, on this supposition, if the accounting
officers of the state government refuse to credit the tax collector
with coupons received by him in payment of taxes, or seek to hold
him responsible for a failure to execute the void statute, which
required him to refuse coupons in payment of taxes, in any action
or [114 U.S. 270, 294] prosecution brought against him in the
name of the state, the grounds of the judgment rendered in favor
of the present plaintiff will constitute his perfect defense. And as
that defense, made in any cause, though brought in a state court,
would present a question arising under the constitution and laws
of the United States, it would be within the jurisdiction of this
court to give it effect, upon a writ of error, without regard to the
amount or value in dispute.

In the case of Osborn v. Bank of U. S. 9 Wheat, 738, 853, Chief


Justice MARSHALL put, by way of argument and illustration, the
very case we are now considering. He said: 'Controversies
respecting boundary have l tely existed between Virginia and
Tennessee, between Kentucky and Tennessee, and now exist
between New York and New Jersey. Suppose, while such a
controversy is pending, the collecting officer of one state should
seize property for taxes belonging to a man who supposes himself
to reside in the other state, and who seeks redress in the federal
court of that state in which the officer resides. The interest of the
state is obvious. Yet it is admitted that in such a case the action
would lie, because the officer might be treated as a trespasser, and
the verdict and judgment against him would not act directly on
the property of the state. That it would not so act, may, perhaps,
depend on circumstances. The officer may retain the amount of
the taxes in his hands, and, on the proceedings of the state against
him, may plead in bar the judgment of a court of competent
jurisdiction. If this plea ought to be sustained, and it is far from
being certain that it ought not, the judgment so pleaded would
have acted directly on the revenue of the state in the hands of its
officers. And yet the argument admits that the action, in such a
case, would be sustained. But suppose, in such a case, the party
conceiving himself to be injured, instead of bringing an action
sounding in damages, should sue for the specific thing, while yet
in possession of the seizing officer. It being admitted, in
argument, that the action sounding in damages would lie, we are
unable to perceive the line of distinction between that and the
action of detinue. Yet the latter action would claim the specific
article seized for the tax, [114 U.S. 270, 295] and would obtain it,
should the seizure be deemed unlawful.'

Although the plaintiff below was nominally the actor, the action
itself is purely defensive. Its object is merely to resist an
attempted wrong, and to restore the status in quo as it was when
the right to be vindicated was invaded. In this respect, it is upon
the same footing with the preventive remedy of injunction in
equity, when that jurisdiction is invoked, and of which a
conspicuous example, constantly followed in the courts of the
United States, was the case of Osborn v. Bank of U. S., ubi supra.
In that case the taxing power of the state was resisted on the
ground that its exercise threatened to deprive the complainant of
a right conferred by the constitution of the United States. The
jurisidiction has been constantly exerted by the courts of the
United States to prevent the illegal taxation of national banks by
the officers of the states. And in Cummings v. National Bank, 101
U.S. 153 , 157, it was laid down as a general principle of equity
jurisidiction 'that when a rule or system of valuation is adopted by
those whose duty it is to make the assessment, which is designed
to operate unequally and to violate a fundamental principle of the
constitution, and when this rule is applied not solely to one
individual, but to a large class of individuals or corporations,
equity may properly interfere to restrain the operation of this
unconstitutional exercise of power.' And it is no objection to the
remedy in such cases that the statute, whose application in the
particular case is sought to be restrained is not void on its face,
but is complained of only because its operation in the particular
instance works a violation of a constitutional right; for the cases
are numerous where the tax laws of a state, which in their general
and proper application are perfectly valid, have been held to
become void in particular cases, either as unconstitutional
regulations of commerce, or as violations of contracts prohibited
by the constitution, or because in some other way they operate to
deprive the party complaining of a right secured to him by the
constitution of the United States. At the present term of this court,
at least three cases have been decided, in which railroad
companies [114 U.S. 270, 296] have been complaints in equity,
seeking to restrain officers of states from collecting taxes, on the
ground of an exem tion by contract, and no question of
jurisdiction has been raised. The practice has become common,
and is well settled on incontestable principles of equity procedure.
Memphis R. R. v. Railroad Com'rs, 112 U.S. 609 ; S. C. ante, 299;
St. Louis, etc., Ry. Co. v. Berry, 113 U.S. 465 ; S. C. ante, 529;
Chesapeake & O. R. R. Co. v. Miller, 114 U. S. --; S. C. ante, 813.

It is still urged upon us, however, in argument, that,


notwithstanding all that has been or can be said, it still remains
that the controversy disclosed by the record is between an
individual and the state; that the state alone has any real interest
in its determination; that the practical effect of such
determination is to control the action of the state in the regular
and orderly administration of its public affairs; and that,
therefore, the suit is and must be regarded as a suit against the
state, within the prohibition of the eleventh amendment to the
constitution. Omitting for the time being the consideration
already enforced, of the fallacy that lies at the bottom of this
objection, arising from the distinction to be kept in view between
the government of a state and the state itself, the premises which
it assumes may all be admitted, but the conclusion would not
follow. The same argument was employed in the name of the
United States in the Lee Case, and did not prevail. It was pressed
with the greatest force of which it was susceptible in the case of
Osborn v. Bank of U. S., and was met and overcome by the
masterly reasoning of Chief Justice MARSHALL. It appeared early
in the history of this court, in 1799, in the case of Fowler v.
Lindsey, 3 Dall. 411, in which that able magistrate, Mr. Justice
WASHINGTON, pronounced his first reported opinion. On a
motion to remove the cause by certiorari from the circuit court, on
the ground that it was a suit in which a state was a party, it being
an ejectment for lands, the title to which was claimed under
grants from different states, he said: 'A case which belongs to the
jurisdiction of the supreme court on account of the interest that a
state has in the controversy must be a case in which a state is
either nominally or substantially the party. [114 U.S. 270, 297] It
is not sufficient that a state may be consequentially affected, for in
such case (as where the grants of different states are brought into
litigation) the circuit court has clearly a jurisdiction. And this
remark furnishes an answer to the suggestions that have been
founded on the remote interest of the state in making retribution
to her grantees upon the event of an eviction.'

The thing prohibited by the eleventh amendment is the exercise of


jurisidiction in a 'suit in law or equity commenced or prosecuted
against one of the United States by citizens of another state, or by
citizens or subjects of any foreign state.' Nothing else is touched;
and suits between individuals, unless the state is the party, in a
substantial sense, are left untouched, no matter how much their
determination may incidentally and consequentially affect the
interests of a state, or the operations of its government. The
fancied inconvenience of an interference with the collection of its
taxes by the government of Virginia, by suits against its tax
collectors, vanishes at once upon the suggestion that such
interference is not possible, except when that government seeks to
enforce the collection of its taxes contrary to the law and contract
of the state, and in violation of the constitution of the United
States. The immunity from suit by the state, now invoked, vainly,
to protect the individual wrong-doers, finds no warrant in the
eleventh amendment to the constitution, and is, in fact, a protest
against the enforcement of that other provision which forbids any
state from passing laws impairing the obligation of contracts. To
accomplish that result requires a new amendment, which would
not forbid any state from passing laws impairing the obligation of
its own contracts.
What we are a ked to do is, in effect, to overrule the doctrine in
Fletcher v. Peck, 6 Cranch, 87, and hold that a state is not under a
constitutional obligation to perform its contracts, for it is
equivalent to that to say that it is not subject to the consequences
when that constitutional prohibition is applied to suits between
individuals. We could not stop there. We should be required to go
still further, and reverse the doctrine on which that constitutional
provision rests, stated by Chief Justice MAR- [114 U.S. 270,
298] SHALL in that case, when he said: 'When, then, a law is in
its nature a contract, when absolute rights have vested under that
contract, a repeal of the law cannot divest those rights; and the act
of annulling them, if legitimate, is rendered so by a power
applicable to the case of every individual in the community. It
may well be doubted whether the nature of society and of
government does not prescribe some limits to the legislative
power; and, if any be prescribed, where are they to be found if the
property of an individual, fairly and honestly acquired, may be
seized without compensation? To the legislature all legislative
power is granted; but the question, whether the act of transferring
the property of an individual to the public be in the nature of
legislative power, is well worthy of serious reflection.' And in view
of such a contention, we may well add the impressive and weighty
words of the same illustrious man, when he said, in Marbury v.
Madison, 1 Cranch, 137: 'The government of the United States has
been emphatically termed a government of laws and not of men.
It will certainly cease to deserve this high appellation if the laws
furnish no remedy for the violation of a vested legal right.'

It is contended, however, in behalf of the defendant in error, that


the act of January 26, 1882, under which he justified his refusal of
the tender of coupons, does not impair the obligation of the
contract between the couponholder and the state of Virginia,
inasmuch as it secures to him a remedy equal in legal value to all
that it takes away, and that, consequently, as the state may
lawfully legislate by changing remedies so that it does not destroy
rights, the remedy thus provided is exclusive, and must defeat the
plaintiff's action. The remedy thus substituted and declared
exclusive is one that requires the tax-payer demanding to have
coupons received in payment of taxes, first, to pay the taxes due
from him in money, under protest, when, within thirty days
thereafter, he may sue the officer to recover back the amount paid,
which, on obtaining judgment therefor, shall be refunded by the
auditor of public accounts out of the treasury. By the amendment
passed March 13, 1884, the coupons tendered are required to [114
U.S. 270, 299] be sealed up and marked for identification, filed
with the petition at the commencement of the suit, produced on
the trial as evidence of the tender, and delivered to the auditor of
public accounts, to be canceled when he issues his warrant for the
amount of the judgment.

It is contended that, in view of this remedy, the case is ruled by


the decision of this court in Antoni v. Greenhow, 107 U.S. 769 ; S.
C. 2 SUP. CT. REP. 91. We have, however, already shown, by
extracts from the opinion of the court in that case, that the
question involved in the present proceeding was not covered by
that judgment. In that case the plaintiff in error was seeking to
compel the officer specifically to receive his coupons in payment
of taxes by mandamus, on the ground that he was entitled to that
remedy when the contract was made by the law of March 30, 1871.
The law giving that remedy was subsequently amended, requiring
the petitioner to pay the taxes in money in the first instance, and
permitting the writ to issue only after a trial, in which the
genuineness of the coupons tendered had been established. The
court held that he might have been put to the same proof in the
former mode of proceeding, and that the amendment did not
destroy the eff ciency of the remedy.

But here the plaintiff did not seek any compulsory process against
the officer to require him specifically to receive the coupons
tendered. He offered them and they were refused. He chose to
stand upon the defensive, and maintain his rights as they might
be assailed. His right was to have his coupon received for taxes
when offered. That was the contract. To refuse to receive them
was an open breach of its obligation. It is no remedy for this that
he may acquiesce in the wrong, pay his taxes in money which he
was entitled to pay in coupons, and bring suit to recover it back.
His tender, as we have already seen, was equivalent to payment,
so far as concerns the legality of all subsequent steps by the
collector to enforce payment by distraint of his property. He has
the right to say he will not pay the amount a second time, even for
the privilege of recovering it back. And if he chooses to stand upon
a lawful payment once made, he asks no remedy to recover back
taxes illegally collected, but may resist the exaction, and treat [114
U.S. 270, 300] as a wrongdoer the officer who seizes his property
to enforce it.

It is suggested that the right to have coupons received in payment


of taxes is a mere right of set-off, and is itself but a remedy subject
to the control of legislation. Ordinarily, it is true, the right to set
off mutual independent debts, by way of compensation and
satisfaction, is dependent on the general law, does not enter into
the contract, although it may be the lex loci contractus, and is
dependent for its enforcement upon the lex fori, when suit is
brought, and consequently may be changed by the legislature,
without impairing vested rights. But in such cases the right is
entirely dependent upon the general law, and changes with it. It is
defferent, when, as in many cases of equitable set-off, it inheres in
the transaction, or arises out of the relations of the parties; and it
may in any case, as it was in this, be made the subject of contract
between parties. When this is done, it stands upon the footing of
every other lawful contract, upon valuable consideration, the
obligation of which cannot be impaired by subsequent legislation.

It is urged upon us, however, that in a revenue system, a provision


of law which gives to a party complaining of an illegal exaction of
taxes, the right to recover back the amount in dispute only after
previous payment under protest, as the sole remedy, against
either the officer or the government, is a just and reasonable rule,
sufficiently securing private rights, and convenient, if not
necessary, to the interests of the public. We are referred to the
revenue laws of the United States for illustration and example,
and the question is put, why a similar provision, as it is assumed
to be, should not be considered adequate as a remedy for the
holders of coupons in Virginia, who have been denied the right to
use them in payment of taxes.

The answer is obvious and complete. Virginia, by a contract which


the constitution of the United States disables her from impairing,
has bound herself that it shall be otherwise. The state has agreed
that the coupons cut from her bonds shall be received in payment
of taxes due to her, as though they were money. When the tax-
payer has tendered such coupons, he has complied with the
agreement, and in legal contemplation [114 U.S. 270, 301] has
paid the debt he owed the state. So far as that tax is concerned,
and every step taken for enforcing its payment in disregard of that
tender, the coupon-holder is withdrawn from the power and
jurisdiction of the state. He is free from all further disturbance,
and is securely shielded by the constitution in his immunity. No
proceeding, whatever its pretext, which does not respect this
right, can be judicially upheld. The question is not of the
reasonableness of a remedy for a breach of the contract to receive
the tendered coupons in payment of the tax; it is whether the right
to have them so received, and the use of that right as a defense a
against all further efforts to exact and compel payment of the tax,
in denial and defiance of that right, can be taken away without a
violation of that provision of the constitution which prohibits the
states from passing laws which impair the obligation of contracts.
Certainly, a law which takes from the party his whole contract,
and all the rights which it was intended to confer, must be
regarded as a law impairing its obligation.
Another point remains for consideration. Section 721, Rev. St.,
provides that 'the laws of the several states, except where the
constitution, treaties, or statutes of the United States otherwise
require or provide, shall be regarded as rules of decision in trials
at common law, in the courts of the United States, in cases where
they apply;' and section 914, Rev. St., declares that 'the practice,
pleadings, and forms and modes of proceeding in civil causes,
other that equity and admiralty causes, in the circuit and district
courts, shall conform, as near as may be, to the practice,
pleadings, and forms and modes of proceeding existing at the time
in like causes in the courts of record of the state within which such
circuit or district courts are held, any rule of court to the contrary
notwithstanding.' Upon these sections it is argued that, admitting
the acts of the general assembly of Virginia of January 26, 1882,
and the amendment by the act of March 13, 1884, to be
unconstitutional and void, so far as they forbid tax collectors from
receiving coupons in payment of taxes, nevertheless, as the state
has control over the forms of action and modes of proceeding by
way of remedy, and has forbidden, in cases where the tax collector
has refused [114 U.S. 270, 302] coupons in payment of taxes, any
personal action against him other than the suit to recover back the
tax demanded and paid under protest, the same law, by force of
the Revised Statutes of the United States, must govern in the
courts of the United States.

It is not entirely clear, on the face of the act of January 26, 1882,
that it does forbid actions against the officer for illegally levying
upon the property of the coupon-holder for the tax which he has
offered to pay. The language of the act seems to embrace only
such suits as are framed with the direct object of preventing or
restraining him from taking steps to collect the tax. And this
uncertainty is not made clear by the amendatory act of March 13,
1884, which, by expressly forbidding actions of trespass or
trespass on the case to be brought or maintained against any
collecting officer for levying upon the property of any tax-payer
who may have tendered coupons in payment of the tax demanded,
would seem to have left the action of detinue, which was
authorized in such cases by the previously existing law of Virginia,
untouched by the prohibition. We shall assume, however, for the
purposes of this opinion, that these acts of the general assembly of
Virginia were intended to and do forbid every action, of whatever
kind, against the collecting officer, for the recovery of specific
property taken by distraint, or of damages for its caption or
detention, and leaves to the coupon-holder, as his sole right of
action, the suit to recover back the money illegally collected from
him.

This action, as we have already seen, is no remedy whatever for


the loss of the specific right of paying his taxes with coupons. It
does not even profess so to be. Neither is it a remedy for the loss
of the right sought to be vindicated in this and other personal
actions against the collector for unlawfully taking from the
plaintiff his property. And, upon the supposition made, this wrong
is without remedy by any law of Virginia. The direct result, then,
of giving effect to these provisions of the act in question is to
defeat entirely the right of the [114 U.S. 270, 303] coupon-holder
to pay his taxes with his coupons, which we have already said
avoids that part of the acts in question which forbids it in terms,
and to take from him that right as a defense against the wrongs
and trespasses committed upon him and his property in denial
and defiance of it. All persons, whose property is unlawfully taken,
otherwise than to enforce payment of taxes, are secured in their
right of section for redress. But the coupon-holder, to whom the
constitution of the United States guaranties the right, conferred
upon him by the law and contract of Virginia, to pay his taxes in
coupons, is excepted. The discrimination is made against him in
order to deprive him of that right, and, if permitted, will have the
effect of denying to him all redress for a deprivation of a right
secured to him by the constitution. To take away all remedy for
the enforcement of a right is to take away the right itself. But that
is not within the power of the state.

Section 721, Rev. St., it will be observed, makes an express


exception, in reference to the adoption of state laws as rules of
decision, of cases where the constitution otherwise requires,
which it does wherever the adoption of the state law deprives a
complaining party of a remedy essential to the vindication of a
right, and that right is derived from or protected by the
constitution of the United States. The same exception is implied
in section 914, the language of which, indeed, is not imperative, as
the conformity required in the practice and procedure of the
courts of the United States with that of the state courts needs only
to be 'as near as may be.' No one would contend that a law of a
state, forbidding all redress by actions at law for injuries to
property, would be upheld in the courts of the United States, for
that would be to deprive one of his properties without due process
of law.
This is exactly what the statutes in question undertake to do, in
respect to that class of persons whose property is taken from them
for the offense of asserting, under the protection of the
constitution, the right to pay their taxes in coupons. The contract
with Virginia was not only that the coupons should be received in
payment of taxes, but, by necessary implication, that the tax-
payer making such a tender should not be molested further, as
though he were a [114 U.S. 270, 304] delinquent, and that for
every illegal attempt subsequently to enforce the collection of the
tax, by the seizure of property, he should have the remedies of the
law in force when the contract was made, for redress, or others
equally effective. 'The obligation of a contract,' said this court, in
McCracken v. Hayward, 2 How. 608, 612, 'consists in its binding
force on the party who makes it. This depends on the laws in
existence when it is made. These are necessarily referred to in all
contracts, and forming a part of them, as the measure of the
obligation to perform them by the one party and the right
acquired by the other. There can be no other standard by which to
ascertain the extent of either than that which the terms of the
contract indicate, according to their settled legal meaning; when it
becomes consummated, the law defines the duty and the right,
compels one party to perform the thing contracted for, and gives
the other a right to enforce the performance by the remedies then
in force. If any subsequent law affect to diminish the duty or to
impair the right, it necessarily bears on the obligation of the
contract, in favor of one party to the injury of the other; hence any
law which in its operation amounts to a denial or obstruction of
the rights accruing by a contract, though professing to act only on
the remedy, is directly obnoxious to the prohibition of the
constitution.'

The acts of assembly in question must be taken together, as one is


but an amendment to the other. The scheme of the whole is
indivisible. It cannot be separated into parts. It must stand or fall
together. The substantive part of it, which forbids the tax collector
to receive coupons in payment of taxes, as we have already
declared, as, indeed, on all sides is admitted, cannot stand,
because it is not consistent with the constitution. That which is
merely auxiliary to the main design must also fall with the princi
al of which it is merely an incident; and it follows that the acts in
question are not laws of Virginia, and are therefore not within the
sections of the Revised Statutes referred to, nor obligatory upon
the courts of the United States.

It is undoubtedly true that there may be cases where one part of a


statute may be enforced as constitutional, and another [114 U.S.
270, 305] be declared inoperative and void, because
unconstitutional; but these are cases where the parts are so
distinctly separable that each can stand alone, and where the
court is able to see, and to declare, that the intention of the
legislature was that the part pronounced valid should be
enforceable, even though the other part should fail. To hold
otherwise would be to substitute for the law intended by the
legislature one they may never have been willing by itself to enact.
An illustration of this principle is found in the Trade-mark
Cases, 100 U.S. 82 , where an act of congress, which, it was
claimed, would have been valid as a regulation of commerce with
foreign nations and among the states, was held to be void
altogether, because it embraced all commerce, including that
between citizens of the same state, which was not within the
jurisdiction of congress, and its language could not be restrained
to that which was subject to the control of congress. 'If we should,'
said the court in that case, (page 99,) 'in the case before us
undertake to make, by judicial construction, a law which congress
did not make, it is quite probable we should do what, if the matter
were now before that body, it would be un willing to do.'

Indeed, it is quite manifest from the face of the laws themselves


that they are together but parts of a larger whole. By an act of the
general assembly of Virginia, passed February 14, 1882, the
legislature restated the account between the state and its creditors
on a basis of readjustment which reduced it to the sum of
$21,035,377.15, including interest in arrears to July 1, 1882, which
was thereby declared to be her equitable share of the debt of the
old and entire state, and on which it was also declared that the
state was not able to pay interest for the future at a larger rate
than 3 per cent. per annum. The outstanding debt, of which this
was a reduction, was then classified, and bonds of the state were
authorized to be issued, bearing interest at the rate of 3 per cent.
per annum, in exchange for outstanding bonds of the different
classes, scaled at rates of 53 per cent., 60 per cent., 69 per cent.,
63 per cent., and, as to one class, as high as 80 per cent., which
were to be retired [114 U.S. 270, 306] and canceled. The coupons
on the new bonds were not made receivable in payment of taxes.
To coerce creditors holding bonds issued under the act of March
30, 1871, to exchange them for these new bonds, at these reduced
rates, and with them to give up their security for the payment of
interest arising out of the receivability of coupons in payment of
taxes, is the evident purpose of the acts of January 26, 1882, and
of March 13, 1884, and all together form a single scheme, the
undisguised object of which is to enable the state to rid itself of a
considerable portion of its public debt, and to place the remainder
on terms to suit its own convenience, without regard to the
obligation it owes to its creditors.

The whole legislation, in all its parts, as to creditors affected by it


and not consenting to it, must be pronounced null and void. Such
is the sentence of the constitution itself, the fundamental and
supreme law for Virginia, as for all the states and for all the
people, both of the states separately and of the United States, and
which speaks with sovereign and commanding voice, expecting
and receiving ready and cheerful obedience, not so much for the
display of its power, as on account of the majesty of its authority
and the justice of its mandates.

The judgment of the hustings court of the city of Richmond is


accordingly reversed, and the cause will be remanded, with
directions to re der judgment upon the agreed statement of facts
in favor of the plaintiff; and it is so ordered.

Footnotes

Republic of the Philippines


SUPREME COURT
Manila

SECOND DIVISION

G.R. No. L-66321 October 31 1984

TRADERS ROYAL BANK, petitioner,


vs.
THE HON INTERMEDIATE APPELATE COURT, HON., JESUS R.
DE VEGA, AS PRESIDING JUDGE OF THE RETIONAL TRIA
COURT, THIRD JUDICIAL REGION, BRANCH IX, MALOLOS,
Bulacan, LA TONDEA, INC., VICTORINO P. EVANGELISTA IN
HIS CAPACITY AS Ex-Officio Provincial Sheriff of Bulacan,
and/or any and all his deputies, respondents.

ESCOLIN, J.: +.wph! 1

The issue posed for resolution in this petition involves the authority of
a Regional Trial Court to issue, at the instance of a third-party
claimant, an injunction enjoining the sale of property previously levied
upon by the sheriff pursuant to a writ of attachment issued by another
Regional Trial Court.

The antecedent facts, undisputed by the parties, are set forth in the
decision of the respondent Intermediate Appellate Court thus: t.hqw

Sometime on March 18, 1983 herein petitioner Traders


Royal Bank instituted a suit against the Remco Alcohol
Distillery, Inc. REMCO before the Regional Trial Court,
Branch CX, Pasay City, in Civil Case No. 9894-P, for the
recovery of the sum of Two Million Three Hundred Eighty
Two Thousand Two Hundred Fifty Eight & 71/100 Pesos
(P2,382,258.71) obtaining therein a writ of pre attachment
directed against the assets and properties of Remco
Alcohol Distillery, Inc.

Pursuant to said writ of attachment issued in Civil Case No.


9894-P, Deputy Sheriff Edilberto Santiago levied among
others about 4,600 barrels of aged or rectified alcohol
found within the premises of said Remco Distillery Inc. A
third party claim was filed with the Deputy Sheriff by herein
respondent La Tondea, Inc. on April 1, 1982 claiming
ownership over said attached property (Complaint, p. 17,
Rollo).
On May 12, 1982, private respondent La Tondea, Inc.
filed a complaint-in- intervention in said Civil Case No.
9894, alleging among others, that 'it had made advances to
Remco Distillery Inc. which totalled P3M and which remains
outstanding as of date' and that the 'attached properties are
owned by La Tondea, Inc.' (Annex '3' to petitioner's Motion
to Dismiss dated July 27, 1983 Annex "C" to the
petition).

Subsequently, private respondent La Tondea, Inc.,


without the foregoing complaint-in- intervention having
been passed upon by the Regional Trial Court, Branch CX,
(Pasay City), filed in Civil Case No. 9894-P a "Motion to
Withdraw" dated October 8, 1983, praying that it be allowed
to withdraw alcohol and molasses from the Remco Distillery
Plant (Annex 4 to Petitioner's Motion to Dismiss-Annex C,
Petition) and which motion was granted per order of the
Pasay Court dated January 27, 1983, authorizing
respondent La Tondea, Inc. to withdraw alcohol and
molasses from the Remco Distillery Plant at Calumpit,
Bulacan (Annex "I" to Reply to Plaintiff's Opposition dated
August 2, 1983 Annex E to the Petition).

The foregoing order dated January 27, 1983 was however


reconsidered by the Pasay Court by virtue of its order
dated February 18, 1983 (Annex A Petition, p. 15)
declaring that the alcohol "which has not been withdrawn
remains in the ownership of defendant Remco Alcohol
Distillery Corporation" and which order likewise denied La
Tondea's motion to intervene.

A motion for reconsideration of the foregoing order of


February 18, 1983 was filed by respondent La Tondea,
Inc., on March 8, 1983 reiterating its request for leave to
withdraw alcohol from the Remco Distillery Plant, and
praying further that the "portion of the order dated February
18, 1983" declaring Remco to be the owner of subject
alcohol, "be reconsidered and striken off said order". This
motion has not been resolved (p. 4, Petition) up to July 18,
1983 when a manifestation that it was withdrawing its
motion for reconsideration was filed by respondent La
Tondea Inc.

On July 19, 1983, private respondent La Tondea Inc.


instituted before the Regional Trial Court, Branch IX,
Malolos, Bulacan presided over by Respondent Judge,
Civil Case No. 7003-M, in which it asserted its claim of
ownership over the properties attached in Civil Case No.
9894-P, and likewise prayed for the issuance of a writ of
Preliminary Mandatory and Prohibitory Injunction (Annex
B,id ).

A Motion to Dismiss and/or Opposition to the application for


a writ of Preliminary Injunction by herein respondent La
Tondea Inc. was filed by petitioner on July 27, 1983
(Annex C, p. 42, Id.)

This was followed by respondent La Tondea's opposition


to petitioner's Motion to Dismiss on August 1, 1983 (Annex
D, p. 67, Id.).

A reply on the part of petitioner was made on the foregoing


opposition on August 3, 1983 (p. 92, Id.).

Hearings were held on respondent La Tondea's


application for injunctive relief and on petitioner's motion to
dismiss on August 8, 19 & 23, 1983 (p. 5, Id.).

Thereafter, the parties filed their respective memoranda


(Annex F, p. 104; Annex G, p. 113, Rollo).

Subsequently, the questioned order dated September 28,


1983 was issued by the respondent Judge declaring
respondent La Tondea Inc. to be the owner of the
disputed alcohol, and granting the latter's application for
injunctive relief (Annex H-1, Id.).
On October 6, 1983, respondent Sheriff Victorino
Evangelista issued on Edilberto A. Santiago Deputy Sheriff
of Pasay City the corresponding writ of preliminary
injunction (Annex N, p. 127, Id.).

This was followed by an order issued by the Pasay Court


dated October 11, 1983 in Civil Case No. 9894-P requiring
Deputy Sheriff Edilberto A. Santiago to enforce the writ of
preliminary attachment previously issued by said court, by
preventing respondent sheriff and respondent La Tondea,
Inc. from withdrawing or removing the disputed alcohol
from the Remco ageing warehouse at Calumpit, Bulacan,
and requiring the aforenamed respondents to explain and
show cause why they should not be cited for contempt for
withdrawing or removing said attached alcohol belonging to
Remco, from the latter's ageing warehouse at Calumpit,
Bulacan (Annex F, p. 141, Petition).

Thereafter, petitioner Traders Royal Bank filed with the Intermediate


Appellate Court a petition for certiorari and prohibition, with application
for a writ of preliminary injunction, to annul and set aside the Order
dated September 28, 1983 of the respondent Regional Trial Court of
Malolos, Bulacan, Branch IX, issued in Civil Case No. 7003-M; to
dissolve the writ of preliminary injunction dated October 6, 1983
issued pursuant to said order; to prohibit respondent Judge from
taking cognizance of and assuming jurisdiction over Civil Case No.
7003-M, and to compel private respondent La Tondea, Inc., and Ex-
Oficio Provincial Sheriff of Bulacan to return the disputed alcohol to
their original location at Remco's ageing warehouse at Calumpit,
Bulacan.

In its decision, the Intermediate Appellate Court dismissed the petition


for lack of legal and factual basis, holding that the respondent Judge
did not abuse his discretion in issuing the Order of September 28,
1983 and the writ of preliminary injunction dated October 3, 1983.
citing the decision in Detective and Protective Bureau vs. Cloribel (26
SCRA 255). Petitioner moved for reconsideration, but the respondent
court denied the same in its resolution dated February 2, 1984.
Hence, this petition.

Petitioner contends that respondent Judge of the Regional T- trial


Court of Bulacan acted without jurisdiction in entertaining Civil Case
No. 7003-M, in authorizing the issuance of a writ of preliminary
mandatory and prohibitory injunction, which enjoined the sheriff of
Pasay City from interferring with La Tondea's right to enter and
withdraw the barrels of alcohol and molasses from Remco's ageing
warehouse and from conducting the sale thereof, said merchandise
having been previously levied upon pursuant to the attachment writ
issued by the Regional Trial Court of Pasay City in Civil Case No.
9894-P. It is submitted that such order of the Bulacan Court
constitutes undue and illegal interference with the exercise by the
Pasay Court of its coordinate and co-equal authority on matters
properly brought before it.

We find the petition devoid of merit.

There is no question that the action filed by private respondent La


Tondea, Inc., as third-party claimant, before the Regional Trial Court
of Bulacan in Civil Case No. 7003-M wherein it claimed ownership
over the property levied upon by Pasay City Deputy Sheriff Edilberto
Santiago is sanctioned by Section 14, Rule 57 of the Rules of Court.
Thus t.hqw

If property taken be claimed by any person other than the


party against whom attachment had been issued or his
agent, and such person makes an affidavit of his title
thereto or right to the possession thereof, stating the
grounds of such right or title, and serves such affidavit
upon the officer while the latter has possession of the
property, and a copy thereof upon the attaching creditor,
the officer shall not be bound to keep the property under
the attachment, unless the attaching creditor or his agent,
on demand of said officer, secures aim against such claim
by a bond in a sum not greater than the value of the
property attached. In case of disagreement as to such
value, the same shall be decided by the court issuing the
writ of attachment. The officer shall not be liable for
damages, for the taking or keeping of such property, to any
such third-party claimant, unless such a claim is so made
and the action upon the bond brought within one hundred
and twenty (120) days from the date of the filing of said
bond. But nothing herein contained shall prevent such third
person from vindicating his claim to the property by proper
action ...

The foregoing rule explicitly sets forth the remedy that may be availed
of by a person who claims to be the owner of property levied upon by
attachment, viz: to lodge a third- party claim with the sheriff, and if the
attaching creditor posts an indemnity bond in favor of the sheriff, to file
a separate and independent action to vindicate his claim (Abiera vs.
Court of Appeals, 45 SCRA 314). And this precisely was the remedy
resorted to by private respondent La Tondea when it filed the
vindicatory action before the Bulacan Court.

The case before us does not really present an issue of first


impression. In Manila Herald Publishing Co., Inc. vs. Ramos, 1 this Court
resolved a similar question in this wise: t.hqw

The objection that at once suggests itself to entertaining in


Case No. 12263 the motion to discharge the preliminary
attachment levied in Case No. 11531 is that by so doing
one judge would interfere with another judge's actuations.
The objection is superficial and will not bear analysis.

It has been seen that a separate action by the third party


who claims to be the owner of the property attached is
appropriate. If this is so, it must be admitted that the judge
trying such action may render judgment ordering the sheriff
of whoever has in possession the attached property to
deliver it to the plaintiff-claimant or desist from seizing it. It
follows further that the court may make an interlocutory
order, upon the filing of such bond as may be necessary, to
release the property pending final adjudication of the title.
Jurisdiction over an action includes jurisdiction over an
interlocutory matter incidental to the cause and deemed
necessary to preserve the subject matter of the suit or
protect the parties' interests. This is self-evident.

xxx xxx xxx

It is true of course that property in custody of the law can


not be interfered without the permission of the proper court,
and property legally attached is property in custodia legis.
But for the reason just stated, this rule is confined to cases
where the property belongs to the defendant or one in
which the defendant has proprietary interest. When the
sheriff acting beyond the bounds of his office seizes a
stranger's property, the rule does not apply and
interference with his custody is not interference with
another court's order of attachment.

It may be argued that the third-party claim may be


unfounded; but so may it be meritorious, for that matter.
Speculations are however beside the point. The title is the
very issue in the case for the recovery of property or the
dissolution of the attachment, and pending final decision,
the court may enter any interlocutory order calculated to
preserve the property in litigation and protect the parties'
rights and interests.

Generally, the rule that no court has the power to interfere by


injunction with the judgments or decrees of a concurrent or coordinate
jurisdiction having equal power to grant the injunctive relief sought by
injunction, is applied in cases where no third-party claimant is
involved, in order to prevent one court from nullifying the judgment or
process of another court of the same rank or category, a power which
devolves upon the proper appellate court . The purpose of the rule is
2

to avoid conflict of power between different courts of coordinate


jurisdiction and to bring about a harmonious and smooth functioning of
their proceedings.
It is further argued that since private respondent La Tondea, Inc.,
had voluntarily submitted itself to the jurisdiction of the Pasay Court by
filing a motion to intervene in Civil Case No. 9894-P, the denial or
dismissal thereof constitutes a bar to the present action filed before
the Bulacan Court.

We cannot sustain the petitioner's view. Suffice it to state that


intervention as a means of protecting the third-party claimant's right in
an attachment proceeding is not exclusive but cumulative and
suppletory to the right to bring an independent suit. The denial or
3

dismissal of a third-party claim to property levied upon cannot operate


to bar a subsequent independent action by the claimant to establish
his right to the property even if he failed to appeal from the order
denying his original third-party claim. 4

WHEREFORE, the instant petition is hereby dismissed and the


decision of the Intermediate Appellate Court in AC-G.R. No. SP-01860
is affirmed, with costs against petitioner Traders Royal Bank.

SO ORDERED. 1w ph1.t

Aquino, Concepcion, Jr., Guerrero and Cuevas, JJ., concur.

Makasiar and Abad Santos, JJ., reserves their vote

Footnotes t.hq w

1 88 Phil. 94.

2 Arabay, Inc. v. Salvador, 82 SCRA 138.

3 Manila Herald Publishing Co., Inc. v.


Ramos, supra; Zulueta, et al. v. Munoz, et al., 17 SCRA
979: Bayer Phil., Inc. v. Agana, 63 SCRA 365.

Potenciano v. Dineros, 97 Phil. 196, 200.


4 Potenciano v. Dineros, 97 Phil. 196. 200.

Republic of the Philippines


SUPREME COURT
Manila

EN BANC

G.R. No. L-14639 March 25, 1919

ZACARIAS VILLAVICENCIO, ET AL., petitioners,


vs.
JUSTO LUKBAN, ET AL., respondents.

Alfonso Mendoza for petitioners.


City Fiscal Diaz for respondents.

MALCOLM, J.:

The annals of juridical history fail to reveal a case quite as remarkable


as the one which this application for habeas corpus submits for
decision. While hardly to be expected to be met with in this modern
epoch of triumphant democracy, yet, after all, the cause presents no
great difficulty if there is kept in the forefront of our minds the basic
principles of popular government, and if we give expression to the
paramount purpose for which the courts, as an independent power of
such a government, were constituted. The primary question is Shall
the judiciary permit a government of the men instead of a government
of laws to be set up in the Philippine Islands?

Omitting much extraneous matter, of no moment to these


proceedings, but which might prove profitable reading for other
departments of the government, the facts are these: The Mayor of the
city of Manila, Justo Lukban, for the best of all reasons, to exterminate
vice, ordered the segregated district for women of ill repute, which had
been permitted for a number of years in the city of Manila, closed.
Between October 16 and October 25, 1918, the women were kept
confined to their houses in the district by the police. Presumably,
during this period, the city authorities quietly perfected arrangements
with the Bureau of Labor for sending the women to Davao, Mindanao,
as laborers; with some government office for the use of the
coastguard cutters Corregidor and Negros, and with the Constabulary
for a guard of soldiers. At any rate, about midnight of October 25, the
police, acting pursuant to orders from the chief of police, Anton
Hohmann and the Mayor of the city of Manila, Justo Lukban,
descended upon the houses, hustled some 170 inmates into patrol
wagons, and placed them aboard the steamers that awaited their
arrival. The women were given no opportunity to collect their
belongings, and apparently were under the impression that they were
being taken to a police station for an investigation. They had no
knowledge that they were destined for a life in Mindanao. They had
not been asked if they wished to depart from that region and had
neither directly nor indirectly given their consent to the deportation.
The involuntary guests were received on board the steamers by a
representative of the Bureau of Labor and a detachment of
Constabulary soldiers. The two steamers with their unwilling
passengers sailed for Davao during the night of October 25.

The vessels reached their destination at Davao on October 29. The


women were landed and receipted for as laborers by Francisco Sales,
provincial governor of Davao, and by Feliciano Yigo and Rafael
Castillo. The governor and the hacendero Yigo, who appear as
parties in the case, had no previous notification that the women were
prostitutes who had been expelled from the city of Manila. The further
happenings to these women and the serious charges growing out of
alleged ill-treatment are of public interest, but are not essential to the
disposition of this case. Suffice it to say, generally, that some of the
women married, others assumed more or less clandestine relations
with men, others went to work in different capacities, others assumed
a life unknown and disappeared, and a goodly portion found means to
return to Manila.

To turn back in our narrative, just about the time the Corregidor and
the Negros were putting in to Davao, the attorney for the relatives and
friends of a considerable number of the deportees presented an
application for habeas corpus to a member of the Supreme Court.
Subsequently, the application, through stipulation of the parties, was
made to include all of the women who were sent away from Manila to
Davao and, as the same questions concerned them all, the application
will be considered as including them. The application set forth the
salient facts, which need not be repeated, and alleged that the women
were illegally restrained of their liberty by Justo Lukban, Mayor of the
city of Manila, Anton Hohmann, chief of police of the city of Manila,
and by certain unknown parties. The writ was made returnable before
the full court. The city fiscal appeared for the respondents, Lukban
and Hohmann, admitted certain facts relative to sequestration and
deportation, and prayed that the writ should not be granted because
the petitioners were not proper parties, because the action should
have been begun in the Court of First Instance for Davao, Department
of Mindanao and Sulu, because the respondents did not have any of
the women under their custody or control, and because their
jurisdiction did not extend beyond the boundaries of the city of Manila.
According to an exhibit attached to the answer of the fiscal, the 170
women were destined to be laborers, at good salaries, on
the haciendas of Yigo and Governor Sales. In open court, the fiscal
admitted, in answer to question of a member of the court, that these
women had been sent out of Manila without their consent. The court
awarded the writ, in an order of November 4, that directed Justo
Lukban, Mayor of the city of Manila, Anton Hohmann, chief of police of
the city of Manila, Francisco Sales, governor of the province of Davao,
and Feliciano Yigo, an hacenderoof Davao, to bring before the court
the persons therein named, alleged to be deprived of their liberty, on
December 2, 1918.

Before the date mentioned, seven of the women had returned to


Manila at their own expense. On motion of counsel for petitioners,
their testimony was taken before the clerk of the Supreme Court sitting
as commissioners. On the day named in the order, December 2nd,
1918, none of the persons in whose behalf the writ was issued were
produced in court by the respondents. It has been shown that three of
those who had been able to come back to Manila through their own
efforts, were notified by the police and the secret service to appear
before the court. The fiscal appeared, repeated the facts more
comprehensively, reiterated the stand taken by him when pleading to
the original petition copied a telegram from the Mayor of the city of
Manila to the provincial governor of Davao and the answer thereto,
and telegrams that had passed between the Director of Labor and the
attorney for that Bureau then in Davao, and offered certain affidavits
showing that the women were contained with their life in Mindanao
and did not wish to return to Manila. Respondents Sales answered
alleging that it was not possible to fulfill the order of the Supreme
Court because the women had never been under his control, because
they were at liberty in the Province of Davao, and because they had
married or signed contracts as laborers. Respondent Yigo answered
alleging that he did not have any of the women under his control and
that therefore it was impossible for him to obey the mandate. The
court, after due deliberation, on December 10, 1918, promulgated a
second order, which related that the respondents had not complied
with the original order to the satisfaction of the court nor explained
their failure to do so, and therefore directed that those of the women
not in Manila be brought before the court by respondents Lukban,
Hohmann, Sales, and Yigo on January 13, 1919, unless the women
should, in written statements voluntarily made before the judge of first
instance of Davao or the clerk of that court, renounce the right, or
unless the respondents should demonstrate some other legal motives
that made compliance impossible. It was further stated that the
question of whether the respondents were in contempt of court would
later be decided and the reasons for the order announced in the final
decision.

Before January 13, 1919, further testimony including that of a number


of the women, of certain detectives and policemen, and of the
provincial governor of Davao, was taken before the clerk of the
Supreme Court sitting as commissioner and the clerk of the Court of
First Instance of Davao acting in the same capacity. On January 13,
1919, the respondents technically presented before the Court the
women who had returned to the city through their own efforts and
eight others who had been brought to Manila by the respondents.
Attorneys for the respondents, by their returns, once again recounted
the facts and further endeavored to account for all of the persons
involved in the habeas corpus. In substance, it was stated that the
respondents, through their representatives and agents, had
succeeded in bringing from Davao with their consent eight women;
that eighty-one women were found in Davao who, on notice that if they
desired they could return to Manila, transportation fee, renounced the
right through sworn statements; that fifty-nine had already returned to
Manila by other means, and that despite all efforts to find them twenty-
six could not be located. Both counsel for petitioners and the city fiscal
were permitted to submit memoranda. The first formally asked the
court to find Justo Lukban, Mayor of the city of Manila, Anton
Hohmann, chief of police of the city of Manila, Jose Rodriguez and
Fernando Ordax, members of the police force of the city of Manila,
Feliciano Yigo, an hacendero of Davao, Modesto Joaquin, the
attorney for the Bureau of Labor, and Anacleto Diaz, fiscal of the city
of Manila, in contempt of court. The city fiscal requested that
the replica al memorandum de los recurridos, (reply to respondents'
memorandum) dated January 25, 1919, be struck from the record.

In the second order, the court promised to give the reasons for
granting the writ of habeas corpus in the final decision. We will now
proceed to do so.

One fact, and one fact only, need be recalled these one hundred
and seventy women were isolated from society, and then at night,
without their consent and without any opportunity to consult with
friends or to defend their rights, were forcibly hustled on board
steamers for transportation to regions unknown. Despite the feeble
attempt to prove that the women left voluntarily and gladly, that such
was not the case is shown by the mere fact that the presence of the
police and the constabulary was deemed necessary and that these
officers of the law chose the shades of night to cloak their secret and
stealthy acts. Indeed, this is a fact impossible to refute and practically
admitted by the respondents.

With this situation, a court would next expect to resolve the


question By authority of what law did the Mayor and the Chief of
Police presume to act in deporting by duress these persons from
Manila to another distant locality within the Philippine Islands? We turn
to the statutes and we find

Alien prostitutes can be expelled from the Philippine Islands in


conformity with an Act of congress. The Governor-General can order
the eviction of undesirable aliens after a hearing from the Islands. Act
No. 519 of the Philippine Commission and section 733 of the Revised
Ordinances of the city of Manila provide for the conviction and
punishment by a court of justice of any person who is a common
prostitute. Act No. 899 authorizes the return of any citizen of the
United States, who may have been convicted of vagrancy, to the
homeland. New York and other States have statutes providing for the
commitment to the House of Refuge of women convicted of being
common prostitutes. Always a law! Even when the health authorities
compel vaccination, or establish a quarantine, or place a leprous
person in the Culion leper colony, it is done pursuant to some law or
order. But one can search in vain for any law, order, or regulation,
which even hints at the right of the Mayor of the city of Manila or the
chief of police of that city to force citizens of the Philippine Islands
and these women despite their being in a sense lepers of society are
nevertheless not chattels but Philippine citizens protected by the same
constitutional guaranties as are other citizens to change their
domicile from Manila to another locality. On the contrary, Philippine
penal law specifically punishes any public officer who, not being
expressly authorized by law or regulation, compels any person to
change his residence.

In other countries, as in Spain and Japan, the privilege of domicile is


deemed so important as to be found in the Bill of Rights of the
Constitution. Under the American constitutional system, liberty of
abode is a principle so deeply imbedded in jurisprudence and
considered so elementary in nature as not even to require a
constitutional sanction. Even the Governor-General of the Philippine
Islands, even the President of the United States, who has often been
said to exercise more power than any king or potentate, has no such
arbitrary prerogative, either inherent or express. Much less, therefore,
has the executive of a municipality, who acts within a sphere of
delegated powers. If the mayor and the chief of police could, at their
mere behest or even for the most praiseworthy of motives, render the
liberty of the citizen so insecure, then the presidents and chiefs of
police of one thousand other municipalities of the Philippines have the
same privilege. If these officials can take to themselves such power,
then any other official can do the same. And if any official can exercise
the power, then all persons would have just as much right to do so.
And if a prostitute could be sent against her wishes and under no law
from one locality to another within the country, then officialdom can
hold the same club over the head of any citizen.

Law defines power. Centuries ago Magna Charta decreed that "No
freeman shall be taken, or imprisoned, or be disseized of his freehold,
or liberties, or free customs, or be outlawed, or exiled, or any other
wise destroyed; nor will we pass upon him nor condemn him, but by
lawful judgment of his peers or by the law of the land. We will sell to
no man, we will not deny or defer to any man either justice or right."
(Magna Charta, 9 Hen., 111, 1225, Cap. 29; 1 eng. stat. at Large, 7.)
No official, no matter how high, is above the law. The courts are the
forum which functionate to safeguard individual liberty and to punish
official transgressors. "The law," said Justice Miller, delivering the
opinion of the Supreme Court of the United States, "is the only
supreme power in our system of government, and every man who by
accepting office participates in its functions is only the more strongly
bound to submit to that supremacy, and to observe the limitations
which it imposes upon the exercise of the authority which it gives."
(U.S. vs. Lee [1882], 106 U.S., 196, 220.) "The very idea," said Justice
Matthews of the same high tribunal in another case, "that one man
may be compelled to hold his life, or the means of living, or any
material right essential to the enjoyment of life, at the mere will of
another, seems to be intolerable in any country where freedom
prevails, as being the essence of slavery itself." (Yick Wo vs. Hopkins
[1886], 118 U.S., 356, 370.) All this explains the motive in issuing the
writ of habeas corpus, and makes clear why we said in the very
beginning that the primary question was whether the courts should
permit a government of men or a government of laws to be
established in the Philippine Islands.
What are the remedies of the unhappy victims of official oppression?
The remedies of the citizen are three: (1) Civil action; (2) criminal
action, and (3) habeas corpus.

The first is an optional but rather slow process by which the aggrieved
party may recoup money damages. It may still rest with the parties in
interest to pursue such an action, but it was never intended effectively
and promptly to meet any such situation as that now before us.

As to criminal responsibility, it is true that the Penal Code in force in


these Islands provides:

Any public officer not thereunto authorized by law or by


regulations of a general character in force in the Philippines who
shall banish any person to a place more than two hundred
kilometers distant from his domicile, except it be by virtue of the
judgment of a court, shall be punished by a fine of not less than
three hundred and twenty-five and not more than three thousand
two hundred and fifty pesetas.

Any public officer not thereunto expressly authorized by law or


by regulation of a general character in force in the Philippines
who shall compel any person to change his domicile or
residence shall suffer the penalty of destierro and a fine of not
less than six hundred and twenty-five and not more than six
thousand two hundred and fifty pesetas. (Art. 211.)

We entertain no doubt but that, if, after due investigation, the proper
prosecuting officers find that any public officer has violated this
provision of law, these prosecutors will institute and press a criminal
prosecution just as vigorously as they have defended the same official
in this action. Nevertheless, that the act may be a crime and that the
persons guilty thereof can be proceeded against, is no bar to the
instant proceedings. To quote the words of Judge Cooley in a case
which will later be referred to "It would be a monstrous anomaly in
the law if to an application by one unlawfully confined, ta be restored
to his liberty, it could be a sufficient answer that the confinement was
a crime, and therefore might be continued indefinitely until the guilty
party was tried and punished therefor by the slow process of criminal
procedure." (In the matter of Jackson [1867], 15 Mich., 416, 434.) The
writ of habeas corpus was devised and exists as a speedy and
effectual remedy to relieve persons from unlawful restraint, and as the
best and only sufficient defense of personal freedom. Any further
rights of the parties are left untouched by decision on the writ, whose
principal purpose is to set the individual at liberty.

Granted that habeas corpus is the proper remedy, respondents have


raised three specific objections to its issuance in this instance. The
fiscal has argued (l) that there is a defect in parties petitioners, (2) that
the Supreme Court should not a assume jurisdiction, and (3) that the
person in question are not restrained of their liberty by respondents. It
was finally suggested that the jurisdiction of the Mayor and the chief of
police of the city of Manila only extends to the city limits and that
perforce they could not bring the women from Davao.

The first defense was not presented with any vigor by counsel. The
petitioners were relatives and friends of the deportees. The way the
expulsion was conducted by the city officials made it impossible for
the women to sign a petition for habeas corpus. It was consequently
proper for the writ to be submitted by persons in their behalf. (Code of
Criminal Procedure, sec. 78; Code of Civil Procedure, sec. 527.) The
law, in its zealous regard for personal liberty, even makes it the duty of
a court or judge to grant a writ of habeas corpus if there is evidence
that within the court's jurisdiction a person is unjustly imprisoned or
restrained of his liberty, though no application be made therefor.
(Code of Criminal Procedure, sec. 93.) Petitioners had standing in
court.

The fiscal next contended that the writ should have been asked for in
the Court of First Instance of Davao or should have been made
returnable before that court. It is a general rule of good practice that,
to avoid unnecessary expense and inconvenience, petitions
for habeas corpus should be presented to the nearest judge of the
court of first instance. But this is not a hard and fast rule. The writ
of habeas corpus may be granted by the Supreme Court or any judge
thereof enforcible anywhere in the Philippine Islands. (Code of
Criminal Procedure, sec. 79; Code of Civil Procedure, sec. 526.)
Whether the writ shall be made returnable before the Supreme Court
or before an inferior court rests in the discretion of the Supreme Court
and is dependent on the particular circumstances. In this instance it
was not shown that the Court of First Instance of Davao was in
session, or that the women had any means by which to advance their
plea before that court. On the other hand, it was shown that the
petitioners with their attorneys, and the two original respondents with
their attorney, were in Manila; it was shown that the case involved
parties situated in different parts of the Islands; it was shown that the
women might still be imprisoned or restrained of their liberty; and it
was shown that if the writ was to accomplish its purpose, it must be
taken cognizance of and decided immediately by the appellate court.
The failure of the superior court to consider the application and then to
grant the writ would have amounted to a denial of the benefits of the
writ.

The last argument of the fiscal is more plausible and more difficult to
meet. When the writ was prayed for, says counsel, the parties in
whose behalf it was asked were under no restraint; the women, it is
claimed, were free in Davao, and the jurisdiction of the mayor and the
chief of police did not extend beyond the city limits. At first blush, this
is a tenable position. On closer examination, acceptance of such
dictum is found to be perversive of the first principles of the writ
of habeas corpus.

A prime specification of an application for a writ of habeas corpus is


restraint of liberty. The essential object and purpose of the writ
of habeas corpus is to inquire into all manner of involuntary restraint
as distinguished from voluntary, and to relieve a person therefrom if
such restraint is illegal. Any restraint which will preclude freedom of
action is sufficient. The forcible taking of these women from Manila by
officials of that city, who handed them over to other parties, who
deposited them in a distant region, deprived these women of freedom
of locomotion just as effectively as if they had been imprisoned.
Placed in Davao without either money or personal belongings, they
were prevented from exercising the liberty of going when and where
they pleased. The restraint of liberty which began in Manila continued
until the aggrieved parties were returned to Manila and released or
until they freely and truly waived his right.

Consider for a moment what an agreement with such a defense would


mean. The chief executive of any municipality in the Philippines could
forcibly and illegally take a private citizen and place him beyond the
boundaries of the municipality, and then, when called upon to defend
his official action, could calmly fold his hands and claim that the
person was under no restraint and that he, the official, had no
jurisdiction over this other municipality. We believe the true principle
should be that, if the respondent is within the jurisdiction of the court
and has it in his power to obey the order of the court and thus to undo
the wrong that he has inflicted, he should be compelled to do so. Even
if the party to whom the writ is addressed has illegally parted with the
custody of a person before the application for the writ is no reason
why the writ should not issue. If the mayor and the chief of police,
acting under no authority of law, could deport these women from the
city of Manila to Davao, the same officials must necessarily have the
same means to return them from Davao to Manila. The respondents,
within the reach of process, may not be permitted to restrain a fellow
citizen of her liberty by forcing her to change her domicile and to avow
the act with impunity in the courts, while the person who has lost her
birthright of liberty has no effective recourse. The great writ of liberty
may not thus be easily evaded.

It must be that some such question has heretofore been presented to


the courts for decision. Nevertheless, strange as it may seem, a close
examination of the authorities fails to reveal any analogous case.
Certain decisions of respectable courts are however very persuasive
in nature.

A question came before the Supreme Court of the State of Michigan at


an early date as to whether or not a writ of habeas corpus would issue
from the Supreme Court to a person within the jurisdiction of the State
to bring into the State a minor child under guardianship in the State,
who has been and continues to be detained in another State. The
membership of the Michigan Supreme Court at this time was notable.
It was composed of Martin, chief justice, and Cooley, Campbell, and
Christiancy, justices. On the question presented the court was equally
divided. Campbell, J., with whom concurred Martin, C. J., held that the
writ should be quashed. Cooley, J., one of the most distinguished
American judges and law-writers, with whom concurred Christiancy,
J., held that the writ should issue. Since the opinion of Justice
Campbell was predicated to a large extent on his conception of the
English decisions, and since, as will hereafter appear, the English
courts have taken a contrary view, only the following eloquent
passages from the opinion of Justice Cooley are quoted:

I have not yet seen sufficient reason to doubt the power of this
court to issue the present writ on the petition which was laid
before us. . . .

It would be strange indeed if, at this late day, after the eulogiums
of six centuries and a half have been expended upon the Magna
Charta, and rivers of blood shed for its establishment; after its
many confirmations, until Coke could declare in his speech on
the petition of right that "Magna Charta was such a fellow that he
will have no sovereign," and after the extension of its benefits
and securities by the petition of right, bill of rights and habeas
corpus acts, it should now be discovered that evasion of that
great clause for the protection of personal liberty, which is the life
and soul of the whole instrument, is so easy as is claimed here.
If it is so, it is important that it be determined without delay, that
the legislature may apply the proper remedy, as I can not doubt
they would, on the subject being brought to their notice. . . .

The second proposition that the statutory provisions are


confined to the case of imprisonment within the state seems
to me to be based upon a misconception as to the source of our
jurisdiction. It was never the case in England that the court of
king's bench derived its jurisdiction to issue and enforce this writ
from the statute. Statutes were not passed to give the right, but
to compel the observance of rights which existed. . . .
The important fact to be observed in regard to the mode of
procedure upon this writ is, that it is directed to and served upon,
not the person confined, but his jailor. It does not reach the
former except through the latter. The officer or person who
serves it does not unbar the prison doors, and set the prisoner
free, but the court relieves him by compelling the oppressor to
release his constraint. The whole force of the writ is spent upon
the respondent, and if he fails to obey it, the means to be
resorted to for the purposes of compulsion are fine and
imprisonment. This is the ordinary mode of affording relief, and if
any other means are resorted to, they are only auxiliary to those
which are usual. The place of confinement is, therefore, not
important to the relief, if the guilty party is within reach of
process, so that by the power of the court he can be compelled
to release his grasp. The difficulty of affording redress is not
increased by the confinement being beyond the limits of the
state, except as greater distance may affect it. The important
question is, where the power of control exercised? And I am
aware of no other remedy. (In the matter of Jackson [1867], 15
Mich., 416.)

The opinion of Judge Cooley has since been accepted as authoritative


by other courts. (Rivers vs. Mitchell [1881], 57 Iowa, 193;
Breene vs. People [1911], Colo., 117 Pac. Rep., 1000; Ex
parte Young [1892], 50 Fed., 526.)

The English courts have given careful consideration to the subject.


Thus, a child had been taken out of English by the respondent. A writ
of habeas corpus was issued by the Queen's Bench Division upon the
application of the mother and her husband directing the defendant to
produce the child. The judge at chambers gave defendant until a
certain date to produce the child, but he did not do so. His return
stated that the child before the issuance of the writ had been handed
over by him to another; that it was no longer in his custody or control,
and that it was impossible for him to obey the writ. He was found in
contempt of court. On appeal, the court, through Lord Esher, M. R.,
said:
A writ of habeas corpus was ordered to issue, and was issued on
January 22. That writ commanded the defendant to have the
body of the child before a judge in chambers at the Royal Courts
of Justice immediately after the receipt of the writ, together with
the cause of her being taken and detained. That is a command
to bring the child before the judge and must be obeyed, unless
some lawful reason can be shown to excuse the nonproduction
of the child. If it could be shown that by reason of his having
lawfully parted with the possession of the child before the issuing
of the writ, the defendant had no longer power to produce the
child, that might be an answer; but in the absence of any lawful
reason he is bound to produce the child, and, if he does not, he
is in contempt of the Court for not obeying the writ without lawful
excuse. Many efforts have been made in argument to shift the
question of contempt to some anterior period for the purpose of
showing that what was done at some time prior to the writ cannot
be a contempt. But the question is not as to what was done
before the issue of the writ. The question is whether there has
been a contempt in disobeying the writ it was issued by not
producing the child in obedience to its commands. (The
Queen vs. Bernardo [1889], 23 Q. B. D., 305. See also to the
same effect the Irish case of In re Matthews, 12 Ir. Com. Law
Rep. [N. S.], 233; The Queen vs. Barnardo, Gossage's Case
[1890], 24 Q. B. D., 283.)

A decision coming from the Federal Courts is also of interest.


A habeas corpus was directed to the defendant to have before the
circuit court of the District of Columbia three colored persons, with the
cause of their detention. Davis, in his return to the writ, stated on oath
that he had purchased the negroes as slaves in the city of
Washington; that, as he believed, they were removed beyond the
District of Columbia before the service of the writ of habeas corpus,
and that they were then beyond his control and out of his custody. The
evidence tended to show that Davis had removed the negroes
because he suspected they would apply for a writ of habeas corpus.
The court held the return to be evasive and insufficient, and that Davis
was bound to produce the negroes, and Davis being present in court,
and refusing to produce them, ordered that he be committed to the
custody of the marshall until he should produce the negroes, or be
otherwise discharged in due course of law. The court afterwards
ordered that Davis be released upon the production of two of the
negroes, for one of the negroes had run away and been lodged in jail
in Maryland. Davis produced the two negroes on the last day of the
term. (United States vs. Davis [1839], 5 Cranch C.C., 622, Fed. Cas.
No. 14926. See also Robb vs. Connolly [1883], 111 U.S., 624; Church
on Habeas, 2nd ed., p. 170.)

We find, therefore, both on reason and authority, that no one of the


defense offered by the respondents constituted a legitimate bar to the
granting of the writ of habeas corpus.

There remains to be considered whether the respondent complied


with the two orders of the Supreme Court awarding the writ of habeas
corpus, and if it be found that they did not, whether the contempt
should be punished or be taken as purged.

The first order, it will be recalled, directed Justo Lukban, Anton


Hohmann, Francisco Sales, and Feliciano Yigo to present the
persons named in the writ before the court on December 2, 1918. The
order was dated November 4, 1918. The respondents were thus given
ample time, practically one month, to comply with the writ. As far as
the record discloses, the Mayor of the city of Manila waited until the
21st of November before sending a telegram to the provincial
governor of Davao. According to the response of the attorney for the
Bureau of Labor to the telegram of his chief, there were then in Davao
women who desired to return to Manila, but who should not be
permitted to do so because of having contracted debts. The half-
hearted effort naturally resulted in none of the parties in question
being brought before the court on the day named.

For the respondents to have fulfilled the court's order, three optional
courses were open: (1) They could have produced the bodies of the
persons according to the command of the writ; or (2) they could have
shown by affidavit that on account of sickness or infirmity those
persons could not safely be brought before the court; or (3) they could
have presented affidavits to show that the parties in question or their
attorney waived the right to be present. (Code of Criminal Procedure,
sec. 87.) They did not produce the bodies of the persons in whose
behalf the writ was granted; they did not show impossibility of
performance; and they did not present writings that waived the right to
be present by those interested. Instead a few stereotyped affidavits
purporting to show that the women were contended with their life in
Davao, some of which have since been repudiated by the signers,
were appended to the return. That through ordinary diligence a
considerable number of the women, at least sixty, could have been
brought back to Manila is demonstrated to be found in the municipality
of Davao, and that about this number either returned at their own
expense or were produced at the second hearing by the respondents.

The court, at the time the return to its first order was made, would
have been warranted summarily in finding the respondents guilty of
contempt of court, and in sending them to jail until they obeyed the
order. Their excuses for the non-production of the persons were far
from sufficient. The, authorities cited herein pertaining to somewhat
similar facts all tend to indicate with what exactitude a habeas
corpus writ must be fulfilled. For example, in Gossage's case, supra,
the Magistrate in referring to an earlier decision of the Court, said:
"We thought that, having brought about that state of things by his own
illegal act, he must take the consequences; and we said that he was
bound to use every effort to get the child back; that he must do much
more than write letters for the purpose; that he must advertise in
America, and even if necessary himself go after the child, and do
everything that mortal man could do in the matter; and that the court
would only accept clear proof of an absolute impossibility by way of
excuse." In other words, the return did not show that every possible
effort to produce the women was made by the respondents. That the
court forebore at this time to take drastic action was because it did not
wish to see presented to the public gaze the spectacle of a clash
between executive officials and the judiciary, and because it desired to
give the respondents another chance to demonstrate their good faith
and to mitigate their wrong.
In response to the second order of the court, the respondents appear
to have become more zealous and to have shown a better spirit.
Agents were dispatched to Mindanao, placards were posted, the
constabulary and the municipal police joined in rounding up the
women, and a steamer with free transportation to Manila was
provided. While charges and counter-charges in such a bitterly
contested case are to be expected, and while a critical reading of the
record might reveal a failure of literal fulfillment with our mandate, we
come to conclude that there is a substantial compliance with it. Our
finding to this effect may be influenced somewhat by our sincere
desire to see this unhappy incident finally closed. If any wrong is now
being perpetrated in Davao, it should receive an executive
investigation. If any particular individual is still restrained of her liberty,
it can be made the object of separate habeas corpus proceedings.

Since the writ has already been granted, and since we find a
substantial compliance with it, nothing further in this connection
remains to be done.

The attorney for the petitioners asks that we find in contempt of court
Justo Lukban, Mayor of the city of Manila, Anton Hohmann, chief of
police of the city of Manila, Jose Rodriguez, and Fernando Ordax,
members of the police force of the city of Manila, Modesto Joaquin,
the attorney for the Bureau of Labor, Feliciano Yigo, an hacendero of
Davao, and Anacleto Diaz, Fiscal of the city of Manila.

The power to punish for contempt of court should be exercised on the


preservative and not on the vindictive principle. Only occasionally
should the court invoke its inherent power in order to retain that
respect without which the administration of justice must falter or fail.
Nevertheless when one is commanded to produce a certain person
and does not do so, and does not offer a valid excuse, a court must, to
vindicate its authority, adjudge the respondent to be guilty of
contempt, and must order him either imprisoned or fined. An officer's
failure to produce the body of a person in obedience to a writ
of habeas corpus when he has power to do so, is a contempt
committed in the face of the court. (Ex parte Sterns [1888], 77 Cal.,
156; In re Patterson [1888], 99 N. C., 407.)
With all the facts and circumstances in mind, and with judicial regard
for human imperfections, we cannot say that any of the respondents,
with the possible exception of the first named, has flatly disobeyed the
court by acting in opposition to its authority. Respondents Hohmann,
Rodriguez, Ordax, and Joaquin only followed the orders of their chiefs,
and while, under the law of public officers, this does not exonerate
them entirely, it is nevertheless a powerful mitigating circumstance.
The hacendero Yigo appears to have been drawn into the case
through a misconstruction by counsel of telegraphic communications.
The city fiscal, Anacleto Diaz, would seem to have done no more than
to fulfill his duty as the legal representative of the city government.
Finding him innocent of any disrespect to the court, his counter-motion
to strike from the record the memorandum of attorney for the
petitioners, which brings him into this undesirable position, must be
granted. When all is said and done, as far as this record discloses, the
official who was primarily responsible for the unlawful deportation, who
ordered the police to accomplish the same, who made arrangements
for the steamers and the constabulary, who conducted the
negotiations with the Bureau of Labor, and who later, as the head of
the city government, had it within his power to facilitate the return of
the unfortunate women to Manila, was Justo Lukban, the Mayor of the
city of Manila. His intention to suppress the social evil was
commendable. His methods were unlawful. His regard for the writ
of habeas corpus issued by the court was only tardily and reluctantly
acknowledged.

It would be possible to turn to the provisions of section 546 of the


Code of Civil Procedure, which relates to the penalty for disobeying
the writ, and in pursuance thereof to require respondent Lukban to
forfeit to the parties aggrieved as much as P400 each, which would
reach to many thousands of pesos, and in addition to deal with him as
for a contempt. Some members of the court are inclined to this stern
view. It would also be possible to find that since respondent Lukban
did comply substantially with the second order of the court, he has
purged his contempt of the first order. Some members of the court are
inclined to this merciful view. Between the two extremes appears to lie
the correct finding. The failure of respondent Lukban to obey the first
mandate of the court tended to belittle and embarrass the
administration of justice to such an extent that his later activity may be
considered only as extenuating his conduct. A nominal fine will at
once command such respect without being unduly oppressive such
an amount is P100.

In resume as before stated, no further action on the writ of habeas


corpus is necessary. The respondents Hohmann, Rodriguez, Ordax,
Joaquin, Yigo, and Diaz are found not to be in contempt of court.
Respondent Lukban is found in contempt of court and shall pay into
the office of the clerk of the Supreme Court within five days the sum of
one hundred pesos (P100). The motion of the fiscal of the city of
Manila to strike from the record the Replica al Memorandum de los
Recurridos of January 25, 1919, is granted. Costs shall be taxed
against respondents. So ordered.

In concluding this tedious and disagreeable task, may we not be


permitted to express the hope that this decision may serve to bulwark
the fortifications of an orderly government of laws and to protect
individual liberty from illegal encroachment.

Arellano, C.J., Avancea and Moir, JJ., concur.


Johnson, and Street, JJ., concur in the result.

Separate Opinions

TORRES, J., dissenting:

The undersigned does not entirely agree to the opinion of the majority
in the decision of the habeas corpusproceeding against Justo Lukban,
the mayor of this city.

There is nothing in the record that shows the motive which impelled
Mayor Lukban to oblige a great number of women of various ages,
inmates of the houses of prostitution situated in Gardenia Street,
district of Sampaloc, to change their residence.
We know no express law, regulation, or ordinance which clearly
prohibits the opening of public houses of prostitution, as those in the
said Gardenia Street, Sampaloc. For this reason, when more than one
hundred and fifty women were assembled and placed aboard a
steamer and transported to Davao, considering that the existence of
the said houses of prostitution has been tolerated for so long a time, it
is undeniable that the mayor of the city, in proceeding in the manner
shown, acted without authority of any legal provision which constitutes
an exception to the laws guaranteeing the liberty and the individual
rights of the residents of the city of Manila.

We do not believe in the pomp and obstentation of force displayed by


the police in complying with the order of the mayor of the city; neither
do we believe in the necessity of taking them to the distant district of
Davao. The said governmental authority, in carrying out his intention
to suppress the segregated district or the community formed by those
women in Gardenia Street, could have obliged the said women to
return to their former residences in this city or in the provinces, without
the necessity of transporting them to Mindanao; hence the said official
is obliged to bring back the women who are still in Davao so that they
may return to the places in which they lived prior to their becoming
inmates of certain houses in Gardenia Street.

As regards the manner whereby the mayor complied with the orders of
this court, we do not find any apparent disobedience and marked
absence of respect in the steps taken by the mayor of the city and his
subordinates, if we take into account the difficulties encountered in
bringing the said women who were free at Davao and presenting them
before this court within the time fixed, inasmuch as it does not appear
that the said women were living together in a given place. It was not
because they were really detained, but because on the first days there
were no houses in which they could live with a relative independent
from one another, and as a proof that they were free a number of
them returned to Manila and the others succeeded in living separate
from their companions who continued living together.

To determine whether or not the mayor acted with a good purpose


and legal object and whether he has acted in good or bad faith in
proceeding to dissolve the said community of prostitutes and to oblige
them to change their domicile, it is necessary to consider not only the
rights and interests of the said women and especially of the patrons
who have been directing and conducting such a reproachable
enterprise and shameful business in one of the suburbs of this city,
but also the rights and interests of the very numerous people of Manila
where relatively a few transients accidentally and for some days
reside, the inhabitants thereof being more than three hundred
thousand (300,000) who can not, with indifference and without
repugnance, live in the same place with so many unfortunate women
dedicated to prostitution.

If the material and moral interests of the community as well as the


demands of social morality are to be taken into account, it is not
possible to sustain that it is legal and permissible to establish a house
of pandering or prostitution in the midst of an enlightened population,
for, although there were no positive laws prohibiting the existence of
such houses within a district of Manila, the dictates of common sense
and dictates of conscience of its inhabitants are sufficient to warrant
the public administration, acting correctly, in exercising the inevitable
duty of ordering the closing and abandonment of a house of
prostitution ostensibly open to the public, and of obliging the inmates
thereof to leave it, although such a house is inhabited by its true
owner who invokes in his behalf the protection of the constitutional law
guaranteeing his liberty, his individual rights, and his right to property.

A cholera patient, a leper, or any other person affected by a known


contagious disease cannot invoke in his favor the constitutional law
which guarantees his liberty and individual rights, should the
administrative authority order his hospitalization, reclusion, or
concentration in a certain island or distant point in order to free from
contagious the great majority of the inhabitants of the country who
fortunately do not have such diseases. The same reasons exist or
stand good with respect to the unfortunate women dedicated to
prostitution, and such reasons become stronger because the first
persons named have contracted their diseases without their
knowledge and even against their will, whereas the unfortunate
prostitutes voluntarily adopted such manner of living and
spontaneously accepted all its consequences, knowing positively that
their constant intercourse with men of all classes, notwithstanding the
cleanliness and precaution which they are wont to adopt, gives way to
the spread or multiplication of the disease known as syphilis, a
venereal disease, which, although it constitutes a secret disease
among men and women, is still prejudicial to the human species in the
same degree, scope, and seriousness as cholera, tuberculosis,
leprosy, pest, typhoid, and other contagious diseases which produce
great mortality and very serious prejudice to poor humanity.

If a young woman, instead of engaging in an occupation or works


suitable to her sex, which can give her sufficient remuneration for her
subsistence, prefers to put herself under the will of another woman
who is usually older than she is and who is the manager or owner of a
house of prostitution, or spontaneously dedicates herself to this
shameful profession, it is undeniable that she voluntarily and with her
own knowledge renounces her liberty and individual rights guaranteed
by the Constitution, because it is evident that she can not join the
society of decent women nor can she expect to get the same respect
that is due to the latter, nor is it possible for her to live within the
community or society with the same liberty and rights enjoyed by
every citizen. Considering her dishonorable conduct and life, she
should therefore be comprised within that class which is always
subject to the police and sanitary regulations conducive to the
maintenance of public decency and morality and to the conservation
of public health, and for this reason it should not permitted that the
unfortunate women dedicated to prostitution evade the just orders and
resolutions adopted by the administrative authorities.

It is regrettable that unnecessary rigor was employed against the said


poor women, but those who have been worrying so much about the
prejudice resulting from a governmental measure, which being a very
drastic remedy may be considered arbitrary, have failed to consider
with due reflection the interests of the inhabitants of this city in general
and particularly the duties and responsibilities weighing upon the
authorities which administer and govern it; they have forgotten that
many of those who criticize and censure the mayor are fathers of
families and are in duty bound to take care of their children.

For the foregoing reasons, we reach the conclusion that when the
petitioners, because of the abnormal life they assumed, were obliged
to change their residence not by a private citizen but by the mayor of
the city who is directly responsible for the conservation of public health
and social morality, the latter could take the step he had taken,
availing himself of the services of the police in good faith and only with
the purpose of protecting the immense majority of the population from
the social evils and diseases which the houses of prostitution situated
in Gardenia Street have been producing, which houses have been
constituting for years a true center for the propagation of general
diseases and other evils derived therefrom. Hence, in ordering the
dissolution and abandonment of the said houses of prostitution and
the change of the domicile of the inmates thereof, the mayor did not in
bad faith violate the constitutional laws which guarantees the liberty
and the individual rights of every Filipino, inasmuch as the women
petitioners do not absolutely enjoy the said liberty and rights, the
exercise of which they have voluntarily renounced in exchange for the
free practice of their shameful profession.

In very highly advanced and civilized countries, there have been


adopted by the administrative authorities similar measures, more or
less rigorous, respecting prostitutes, considering them prejudicial to
the people, although it is true that in the execution of such measures
more humane and less drastic procedures, fortiter in re et suaviter in
forma, have been adopted, but such procedures have always had in
view the ultimate object of the Government for the sake of the
community, that is, putting an end to the living together in a certain
place of women dedicated to prostitution and changing their domicile,
with the problematical hope that they adopt another manner of living
which is better and more useful to themselves and to society.

In view of the foregoing remarks, we should hold, as we hereby hold,


that Mayor Justo Lukban is obliged to take back and restore the said
women who are at present found in Davao, and who desire to return
to their former respective residences, not in Gardenia Street,
Sampaloc District, with the exception of the prostitutes who should
expressly make known to the clerk of court their preference to reside
in Davao, which manifestation must be made under oath. This
resolution must be transmitted to the mayor within the shortest time
possible for its due compliance. The costs shall be charged de officio.

ARAULLO, J., dissenting in part:

I regret to dissent from the respectable opinion of the majority in the


decision rendered in these proceedings, with respect to the finding as
to the importance of the contempt committed, according to the same
decision, by Justo Lukban, Mayor of the city of Manila, and the
consequent imposition upon him of a nominal fine of P100.

In the said decision, it is said:

The first order, it will be recalled, directed Justo Lukban, Anton


Hohmann, Francisco Sales, and Feliciano Yigo to present the
persons named in the writ before the court on December 2,
1918. The order was dated November 4, 1918. The respondents
were thus given ample time, practically one month, to comply
with the writ. As far as the record disclosed, the mayor of the city
of Manila waited until the 21st of November before sending a
telegram to the provincial governor of Davao. According to the
response of the Attorney for the Bureau of Labor to the telegram
of his chief, there were then in Davao women who desired to
return to Manila, but who should not be permitted to do so
because of having contracted debts. The half-hearted effort
naturally resulted in none of the parties in question being brought
before the court on the day named.

In accordance with section 87 of General Orders No. 58, as said in the


same decision, the respondents, for the purpose of complying with the
order of the court, could have, (1) produced the bodies of the persons
according to the command of the writ; (2) shown by affidavits that on
account of sickness or infirmity the said women could not safely be
brought before this court; and (3) presented affidavits to show that the
parties in question or their lawyers waived their right to be present.
According to the same decision, the said respondents ". . . did not
produce the bodies of the persons in whose behalf the writ was
granted; did not show impossibility of performance; and did not
present writings, that waived the right to be present by those
interested. Instead, a few stereotyped affidavits purporting to show
that the women were contented with their life in Davao, some of which
have since been repudiated by the signers, were appended to the
return. That through ordinary diligence a considerable number of the
women, at least sixty, could have been brought back to Manila is
demonstrated by the fact that during this time they were easily to be
found in the municipality of Davao, and that about this number either
returned at their own expense or were produced at the second hearing
by the respondents."

The majority opinion also recognized that, "That court, at the time the
return to its first order was made, would have been warranted
summarily in finding the respondent guilty of contempt of court, and in
sending them to jail until they obeyed the order. Their excuses for the
non production of the persons were far from sufficient." To corroborate
this, the majority decision cites the case of the Queen vs. Barnardo,
Gossage's Case ([1890], 24 Q. B. D., 283) and added "that the return
did not show that every possible effort to produce the women was
made by the respondents."

When the said return by the respondents was made to this court in
banc and the case discussed, my opinion was that Mayor Lukban
should have been immediately punished for contempt. Nevertheless, a
second order referred to in the decision was issued on December 10,
1918, requiring the respondents to produce before the court, on
January 13, 1919, the women who were not in Manila, unless they
could show that it was impossible to comply with the said order on the
two grounds previously mentioned. With respect to this second order,
the same decision has the following to say:

In response to the second order of the court, the respondents


appear to have become more zealous and to have shown a
better spirit. Agents were dispatched to Mindanao, placards were
posted, the constabulary and the municipal police joined in
rounding up the women, and a steamer with free transportation
to Manila was provided. While charges and countercharges in
such a bitterly contested case are to be expected, and while a
critical reading of the record might reveal a failure of literal
fulfillment with our mandate, we come to conclude that there is a
substantial compliance with it.

I do not agree to this conclusion.

The respondent mayor of the city of Manila, Justo Lukban, let 17 days
elapse from the date of the issuance of the first order on November
4th till the 21st of the same month before taking the first step for
compliance with the mandate of the said order; he waited till the 21st
of November, as the decision says, before he sent a telegram to the
provincial governor o f Davao and naturally this half-hearted effort, as
is so qualified in the decision, resulted in that none of the women
appeared before this court on December 2nd. Thus, the said order
was not complied with, and in addition to this noncompliance there
was the circumstances that seven of the said women having returned
to Manila at their own expense before the said second day of
December and being in the antechamber of the court room, which fact
was known to Chief of Police Hohmann, who was then present at the
trial and to the attorney for the respondents, were not produced before
the court by the respondents nor did the latter show any effort to
present them, in spite of the fact that their attention was called to this
particular by the undersigned.

The result of the said second order was, as is said in the same
decision, that the respondents, on January 13th, the day fixed for the
protection of the women before this court, presented technically the
seven (7) women above-mentioned who had returned to the city at
their own expense and the other eight (8) women whom the
respondents themselves brought to Manila, alleging moreover that
their agents and subordinates succeeded in bringing them from Davao
with their consent; that in Davao they found eighty-one (81) women
who, when asked if they desired to return to Manila with free
transportation, renounced such a right, as is shown in the affidavits
presented by the respondents to this effect; that, through other means,
fifty-nine (59) women have already returned to Manila, but
notwithstanding the efforts made to find them it was not possible to
locate the whereabouts of twenty-six (26) of them. Thus, in short, out
of the one hundred and eighty-one (181) women who, as has been
previously said, have been illegally detained by Mayor Lukban and
Chief of Police Hohmann and transported to Davao against their will,
only eight (8) have been brought to Manila and presented before this
court by the respondents in compliance with the said two orders. Fifty-
nine (59) of them have returned to Manila through other means not
furnished by the respondents, twenty-six of whom were brought by the
attorney for the petitioners, Mendoza, on his return from Davao. The
said attorney paid out of his own pocket the transportation of the said
twenty-six women. Adding to these numbers the other seven (7)
women who returned to this city at their own expense before January
13 we have a total of sixty-six (66), which evidently proves, on the one
hand, the falsity of the allegation by the respondents in their first
answer at the trial of December 2, 1918, giving as one of the reasons
for their inability to present any of the said women that the latter were
content with their life in Mindanao and did not desire to return to
Manila; and, on the other hand, that the respondents, especially the
first named, that is Mayor Justo Lukban, who acted as chief and
principal in all that refers to the compliance with the orders issued by
this court, could bring before December 2nd, the date of the first
hearing of the case, as well as before January 13th, the date fixed for
the compliance with the second order, if not the seventy-four (74)
women already indicated, at least a great number of them, or at least
sixty (60) of them, as is said in the majority decision, inasmuch as the
said respondent could count upon the aid of the Constabulary forces
and the municipal police, and had transportation facilities for the
purpose. But the said respondent mayor brought only eight (8) of the
women before this court on January 13th. This fact can not, in my
judgment, with due respect to the majority opinion, justify the
conclusion that the said respondent has substantially complied with
the second order of this court, but on the other hand demonstrates
that he had not complied with the mandate of this court in its first and
second orders; that neither of the said orders has been complied with
by the respondent Justo Lukban, Mayor of the city of Manila, who is,
according to the majority decision, principally responsible for the
contempt, to which conclusion I agree. The conduct of the said
respondent with respect to the second order confirms the contempt
committed by non-compliance with the first order and constitutes a
new contempt because of non-compliance with the second, because
of the production of only eight (8) of the one hundred and eighty-one
(181) women who have been illegally detained by virtue of his order
and transported to Davao against their will, committing the twenty-six
(26) women who could not be found in Davao, demonstrates in my
opinion that, notwithstanding the nature of the case which deals with
the remedy of habeas corpus, presented by the petitioners and
involving the question whether they should or not be granted their
liberty, the respondent has not given due attention to the same nor
has he made any effort to comply with the second order. In other
words, he has disobeyed the said two orders; has despised the
authority of this court; has failed to give the respect due to justice; and
lastly, he has created and placed obstacles to the administration of
justice in the said habeas corpus proceeding, thus preventing,
because of his notorious disobedience, the resolution of the said
proceeding with the promptness which the nature of the same
required.

Contempt of court has been defined as a despising of the


authority, justice, or dignity of the court; and he is guilty of
contempt whose conduct is such as tends to bring the authority
and administration of the law into disrespect or disregard. . . ."
(Ruling Case Law, vol. 6, p. 488.)

It is a general principle that a disobedience of any valid order of


the court constitutes contempt, unless the defendant is unable to
comply therewith. (Ruling Case Law, vol. 6, p. 502.)

It is contempt to employ a subterfuge to evade the judgment of


the court, or to obstruct or attempt to obstruct the service of legal
process. If a person hinders or prevents the service of process
by deceiving the officer or circumventing him by any means, the
result is the same as though he had obstructed by some direct
means. (Ruling Case Law, vol. 6, p. 503.)
While it may seem somewhat incongruous to speak, as the
courts often do, of enforcing respect for the law and for the
means it has provided in civilized communities for establishing
justice, since true respect never comes in that way, it is apparent
nevertheless that the power to enforce decorum in the courts
and obedience to their orders and just measures is so essentially
a part of the life of the courts that it would be difficult to conceive
of their usefulness or efficiency as existing without it. Therefore it
may be said generally that where due respect for the courts as
ministers of the law is wanting, a necessity arises for the use of
compulsion, not, however, so much to excite individual respect
as to compel obedience or to remove an unlawful or unwarranted
interference with the administration of justice. (Ruling Case Law,
vol. 6, p. 487.)

The power to punish for contempt is as old as the law itself, and
has been exercised from the earliest times. In England it has
been exerted when the contempt consisted of scandalizing the
sovereign or his ministers, the law-making power, or the courts.
In the American states the power to punish for contempt, so far
as the executive department and the ministers of state are
concerned, and in some degree so far as the legislative
department is concerned, is obsolete, but it has been almost
universally preserved so far as regards the judicial department.
The power which the courts have of vindicating their own
authority is a necessary incident to every court of justice,
whether of record or not; and the authority for issuing
attachments in a proper case for contempts out of court, it has
been declared, stands upon the same immemorial usage as
supports the whole fabric of the common law. . . . (Ruling Case
Law, vol. 6, p. 489.)

The undisputed importance of the orders of this court which have


been disobeyed; the loss of the prestige of the authority of the court
which issued the said orders, which loss might have been caused by
noncompliance with the same orders on the part of the respondent
Justo Lukban; the damages which might have been suffered by some
of the women illegally detained, in view of the fact that they were not
brought to Manila by the respondents to be presented before the court
and of the further fact that some of them were obliged to come to this
city at their own expense while still others were brought to Manila by
the attorney for the petitioners, who paid out of his own pocket the
transportation of the said women; and the delay which was
necessarily incurred in the resolution of the petition interposed by the
said petitioners and which was due to the fact that the said orders
were not opportunately and duly obeyed and complied with, are
circumstances which should be taken into account in imposing upon
the respondent Justo Lukban the penalty corresponding to the
contempt committed by him, a penalty which, according to section 236
of the Code of Civil Procedure, should consist of a fine not exceeding
P1,000 or imprisonment not exceeding months, or both such fine and
imprisonment. In the imposition of the penalty, there should also be
taken into consideration the special circumstance that the contempt
was committed by a public authority, the mayor of the city of Manila,
the first executive authority of the city, and consequently, the person
obliged to be the first in giving an example of obedience and respect
for the laws and the valid and just orders of the duly constituted
authorities as well as for the orders emanating from the courts of
justice, and in giving help and aid to the said courts in order that
justice may be administered with promptness and rectitude.

I believe, therefore, that instead of the fine of one hundred pesos


(P100), there should be imposed upon the respondent Justo Lukban a
fine of five hundred pesos (P500), and all the costs should be charged
against him. Lastly, I believe it to be my duty to state here that the
records of this proceeding should be transmitted to the Attorney-
General in order that, after a study of the same and deduction from
the testimony which he may deem necessary, and the proper
transmittal of the same to the fiscal of the city of Manila and to the
provincial fiscal of Davao, both the latter shall present the
corresponding informations for the prosecution and punishment of the
crimes which have been committed on the occasion when the illegal
detention of the women was carried into effect by Mayor Justo Lukban
of the city of Manila and Chief of Police Anton Hohmann, and also of
those crimes committed by reason of the same detention and while
the women were in Davao. This will be one of the means whereby the
just hope expressed in the majority decision will be realized, that is,
that in the Philippine Islands there should exist a government of laws
and not a government of men and that this decision may serve to
bulwark the fortifications of an orderly Government of laws and to
protect individual liberty from illegal encroachments.

G.R. No. 169777* April 20, 2006

SENATE OF THE PHILIPPINES, represented by FRANKLIN M. DRILON, in his capacity as


Senate President, JUAN M. FLAVIER, in his capacity as Senate President Pro Tempore,
FRANCIS N. PANGILINAN, in his capacity as Majority Leader, AQUILINO Q. PIMENTEL, JR., in
his capacity as Minority Leader, SENATORS RODOLFO G. BIAZON, "COMPANERA" PIA S.
CAYETANO, JINGGOY EJERCITO ESTRADA, LUISA "LOI" EJERCITO ESTRADA, JUAN
PONCE ENRILE, RICHARD J. GORDON, PANFILO M. LACSON, ALFREDO S.LIM, M. A.
MADRIGAL, SERGIO OSMENA III, RALPH G. RECTO, and MAR ROXAS, Petitioners,
vs.
EDUARDO R. ERMITA, in his capacity as Executive Secretary and alter-ego of President
Gloria Macapagal-Arroyo, and anyone acting in his stead and in behalf of the President of the
Philippines, Respondents.

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

G.R. No. 169659 April 20, 2006

BAYAN MUNA represented by DR. REYNALDO LESACA, JR., Rep. SATUR OCAMPO, Rep.
CRISPIN BELTRAN, Rep. RAFAEL MARIANO, Rep. LIZA MAZA, Rep. TEODORO CASINO, Rep.
JOEL VIRADOR, COURAGE represented by FERDINAND GAITE, and COUNSELS FOR THE
DEFENSE OF LIBERTIES (CODAL) represented by ATTY. REMEDIOS BALBIN, Petitioners,
vs.
EDUARDO ERMITA, in his capacity as Executive Secretary and alter-ego of President Gloria
Macapagal-Arroyo, Respondent.

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

G.R. No. 169660 April 20, 2006

FRANCISCO I. CHAVEZ, Petitioner,


vs.
EDUARDO R. ERMITA, in his capacity as Executive Secretary, AVELINO J. CRUZ, JR., in his
capacity as Secretary of Defense, and GENEROSO S. SENGA, in his capacity as AFP Chief of
Staff, Respondents.
x-------------------------x

G.R. No. 169667 April 20, 2006

ALTERNATIVE LAW GROUPS, INC. (ALG), Petitioner,


vs.
HON. EDUARDO R. ERMITA, in his capacity as Executive Secretary, Respondent.

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

G.R. No. 169834 April 20, 2006

PDP- LABAN, Petitioner,


vs.
EXECUTIVE SECRETARY EDUARDO R. ERMITA, Respondent.

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

G.R. No. 171246 April 20, 2006

JOSE ANSELMO I. CADIZ, FELICIANO M. BAUTISTA, ROMULO R. RIVERA, JOSE AMOR


AMORANDO, ALICIA A. RISOS-VIDAL, FILEMON C. ABELITA III, MANUEL P. LEGASPI, J. B.
JOVY C. BERNABE, BERNARD L. DAGCUTA, ROGELIO V. GARCIA, and the INTEGRATED
BAR FOR THE PHILIPPINES, Petitioners,
vs.
HON. EXECUTIVE SECRETARY EDUARDO R. ERMITA, Respondent.

DECISION

CARPIO MORALES, J.:

A transparent government is one of the hallmarks of a truly republican state. Even in the early history
of republican thought, however, it has been recognized that the head of government may keep
certain information confidential in pursuit of the public interest. Explaining the reason for vesting
executive power in only one magistrate, a distinguished delegate to the U.S. Constitutional
Convention said: "Decision, activity, secrecy, and dispatch will generally characterize the
proceedings of one man, in a much more eminent degree than the proceedings of any greater
number; and in proportion as the number is increased, these qualities will be diminished."1

History has been witness, however, to the fact that the power to withhold information lends itself to
abuse, hence, the necessity to guard it zealously.

The present consolidated petitions for certiorari and prohibition proffer that the President has abused
such power by issuing Executive Order No. 464 (E.O. 464) last September 28, 2005. They thus pray
for its declaration as null and void for being unconstitutional.

In resolving the controversy, this Court shall proceed with the recognition that the issuance under
review has come from a co-equal branch of government, which thus entitles it to a strong
presumption of constitutionality. Once the challenged order is found to be indeed violative of the
Constitution, it is duty-bound to declare it so. For the Constitution, being the highest expression of
the sovereign will of the Filipino people, must prevail over any issuance of the government that
contravenes its mandates.

In the exercise of its legislative power, the Senate of the Philippines, through its various Senate
Committees, conducts inquiries or investigations in aid of legislation which call for, inter alia, the
attendance of officials and employees of the executive department, bureaus, and offices including
those employed in Government Owned and Controlled Corporations, the Armed Forces of the
Philippines (AFP), and the Philippine National Police (PNP).

On September 21 to 23, 2005, the Committee of the Senate as a whole issued invitations to various
officials of the Executive Department for them to appear on September 29, 2005 as resource
speakers in a public hearing on the railway project of the North Luzon Railways Corporation with the
China National Machinery and Equipment Group (hereinafter North Rail Project). The public hearing
was sparked by a privilege speech of Senator Juan Ponce Enrile urging the Senate to investigate
the alleged overpricing and other unlawful provisions of the contract covering the North Rail Project.

The Senate Committee on National Defense and Security likewise issued invitations2 dated
September 22, 2005 to the following officials of the AFP: the Commanding General of the Philippine
Army, Lt. Gen. Hermogenes C. Esperon; Inspector General of the AFP Vice Admiral Mateo M.
Mayuga; Deputy Chief of Staff for Intelligence of the AFP Rear Admiral Tirso R. Danga; Chief of the
Intelligence Service of the AFP Brig. Gen. Marlu Q. Quevedo; Assistant Superintendent of the
Philippine Military Academy (PMA) Brig. Gen. Francisco V. Gudani; and Assistant Commandant,
Corps of Cadets of the PMA, Col. Alexander F. Balutan, for them to attend as resource persons in a
public hearing scheduled on September 28, 2005 on the following: (1) Privilege Speech of Senator
Aquilino Q. Pimentel Jr., delivered on June 6, 2005 entitled "Bunye has Provided Smoking Gun or
has Opened a Can of Worms that Show Massive Electoral Fraud in the Presidential Election of May
2005"; (2) Privilege Speech of Senator Jinggoy E. Estrada delivered on July 26, 2005 entitled "The
Philippines as the Wire-Tapping Capital of the World"; (3) Privilege Speech of Senator Rodolfo
Biazon delivered on August 1, 2005 entitled "Clear and Present Danger"; (4) Senate Resolution No.
285 filed by Senator Maria Ana Consuelo Madrigal Resolution Directing the Committee on National
Defense and Security to Conduct an Inquiry, in Aid of Legislation, and in the National Interest, on the
Role of the Military in the So-called "Gloriagate Scandal"; and (5) Senate Resolution No. 295 filed by
Senator Biazon Resolution Directing the Committee on National Defense and Security to Conduct
an Inquiry, in Aid of Legislation, on the Wire-Tapping of the President of the Philippines.

Also invited to the above-said hearing scheduled on September 28 2005 was the AFP Chief of Staff,
General Generoso S. Senga who, by letter3 dated September 27, 2005, requested for its
postponement "due to a pressing operational situation that demands [his utmost personal attention"
while "some of the invited AFP officers are currently attending to other urgent operational matters."

On September 28, 2005, Senate President Franklin M. Drilon received from Executive Secretary
Eduardo R. Ermita a letter4 dated September 27, 2005 "respectfully request[ing] for the
postponement of the hearing [regarding the NorthRail project] to which various officials of the
Executive Department have been invited" in order to "afford said officials ample time and opportunity
to study and prepare for the various issues so that they may better enlighten the Senate Committee
on its investigation."

Senate President Drilon, however, wrote5 Executive Secretary Ermita that the Senators "are unable
to accede to [his request]" as it "was sent belatedly" and "[a]ll preparations and arrangements as well
as notices to all resource persons were completed [the previous] week."
Senate President Drilon likewise received on September 28, 2005 a letter6 from the President of the
North Luzon Railways Corporation Jose L. Cortes, Jr. requesting that the hearing on the NorthRail
project be postponed or cancelled until a copy of the report of the UP Law Center on the contract
agreements relative to the project had been secured.

On September 28, 2005, the President issued E.O. 464, "Ensuring Observance of the Principle of
Separation of Powers, Adherence to the Rule on Executive Privilege and Respect for the Rights of
Public Officials Appearing in Legislative Inquiries in Aid of Legislation Under the Constitution, and
For Other Purposes,"7 which, pursuant to Section 6 thereof, took effect immediately. The salient
provisions of the Order are as follows:

SECTION 1. Appearance by Heads of Departments Before Congress. In accordance with Article


VI, Section 22 of the Constitution and to implement the Constitutional provisions on the separation of
powers between co-equal branches of the government, all heads of departments of the Executive
Branch of the government shall secure the consent of the President prior to appearing before either
House of Congress.

When the security of the State or the public interest so requires and the President so states in
writing, the appearance shall only be conducted in executive session.

SECTION. 2. Nature, Scope and Coverage of Executive Privilege.

(a) Nature and Scope. - The rule of confidentiality based on executive privilege is fundamental to the
operation of government and rooted in the separation of powers under the Constitution (Almonte vs.
Vasquez, G.R. No. 95367, 23 May 1995). Further, Republic Act No. 6713 or the Code of Conduct
and Ethical Standards for Public Officials and Employees provides that Public Officials and
Employees shall not use or divulge confidential or classified information officially known to them by
reason of their office and not made available to the public to prejudice the public interest.

Executive privilege covers all confidential or classified information between the President and the
public officers covered by this executive order, including:

Conversations and correspondence between the President and the public official covered by this
executive order (Almonte vs. Vasquez G.R. No. 95367, 23 May 1995; Chavez v. Public Estates
Authority, G.R. No. 133250, 9 July 2002);

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

Information between inter-government agencies prior to the conclusion of treaties and executive
agreements (Chavez v. Presidential Commission on Good Government, G.R. No. 130716, 9
December 1998);

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


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

Matters affecting national security and public order (Chavez v. Public Estates Authority, G.R. No.
133250, 9 July 2002).

(b) Who are covered. The following are covered by this executive order:
Senior officials of executive departments who in the judgment of the department heads are covered
by the executive privilege;

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

Philippine National Police (PNP) officers with rank of chief superintendent or higher and such other
officers who in the judgment of the Chief of the PNP are covered by the executive privilege;

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

Such other officers as may be determined by the President.

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

Also on September 28, 2005, Senate President Drilon received from Executive Secretary Ermita a
copy of E.O. 464, and another letter8 informing him "that officials of the Executive Department invited
to appear at the meeting [regarding the NorthRail project] will not be able to attend the same without
the consent of the President, pursuant to [E.O. 464]" and that "said officials have not secured the
required consent from the President." On even date which was also the scheduled date of the
hearing on the alleged wiretapping, Gen. Senga sent a letter9 to Senator Biazon, Chairperson of the
Committee on National Defense and Security, informing him "that per instruction of [President
Arroyo], thru the Secretary of National Defense, no officer of the [AFP] is authorized to appear
before any Senate or Congressional hearings without seeking a written approval from the President"
and "that no approval has been granted by the President to any AFP officer to appear before the
public hearing of the Senate Committee on National Defense and Security scheduled [on] 28
September 2005."

Despite the communications received from Executive Secretary Ermita and Gen. Senga, the
investigation scheduled by the Committee on National Defense and Security pushed through, with
only Col. Balutan and Brig. Gen. Gudani among all the AFP officials invited attending.

For defying President Arroyos order barring military personnel from testifying before legislative
inquiries without her approval, Brig. Gen. Gudani and Col. Balutan were relieved from their military
posts and were made to face court martial proceedings.

As to the NorthRail project hearing scheduled on September 29, 2005, Executive Secretary Ermita,
citing E.O. 464, sent letter of regrets, in response to the invitations sent to the following government
officials: Light Railway Transit Authority Administrator Melquiades Robles, Metro Rail Transit
Authority Administrator Roberto Lastimoso, Department of Justice (DOJ) Chief State Counsel
Ricardo V. Perez, then Presidential Legal Counsel Merceditas Gutierrez, Department of
Transportation and Communication (DOTC) Undersecretary Guiling Mamonding, DOTC Secretary
Leandro Mendoza, Philippine National Railways General Manager Jose Serase II, Monetary Board
Member Juanita Amatong, Bases Conversion Development Authority Chairperson Gen. Narciso
Abaya and Secretary Romulo L. Neri.10 NorthRail President Cortes sent personal regrets likewise
citing E.O. 464.11
On October 3, 2005, three petitions, docketed as G.R. Nos. 169659, 169660, and 169667, for
certiorari and prohibition, were filed before this Court challenging the constitutionality of E.O. 464.

In G.R. No. 169659, petitioners party-list Bayan Muna, House of Representatives Members Satur
Ocampo, Crispin Beltran, Rafael Mariano, Liza Maza, Joel Virador and Teodoro Casino, Courage,
an organization of government employees, and Counsels for the Defense of Liberties (CODAL), a
group of lawyers dedicated to the promotion of justice, democracy and peace, all claiming to have
standing to file the suit because of the transcendental importance of the issues they posed, pray, in
their petition that E.O. 464 be declared null and void for being unconstitutional; that respondent
Executive Secretary Ermita, in his capacity as Executive Secretary and alter-ego of President
Arroyo, be prohibited from imposing, and threatening to impose sanctions on officials who appear
before Congress due to congressional summons. Additionally, petitioners claim that E.O. 464
infringes on their rights and impedes them from fulfilling their respective obligations. Thus, Bayan
Muna alleges that E.O. 464 infringes on its right as a political party entitled to participate in
governance; Satur Ocampo, et al. allege that E.O. 464 infringes on their rights and duties as
members of Congress to conduct investigation in aid of legislation and conduct oversight functions in
the implementation of laws; Courage alleges that the tenure of its members in public office is
predicated on, and threatened by, their submission to the requirements of E.O. 464 should they be
summoned by Congress; and CODAL alleges that its members have a sworn duty to uphold the rule
of law, and their rights to information and to transparent governance are threatened by the
imposition of E.O. 464.

In G.R. No. 169660, petitioner Francisco I. Chavez, claiming that his constitutional rights as a citizen,
taxpayer and law practitioner, are affected by the enforcement of E.O. 464, prays in his petition that
E.O. 464 be declared null and void for being unconstitutional.

In G.R. No. 169667, petitioner Alternative Law Groups, Inc.12 (ALG), alleging that as a coalition of 17
legal resource non-governmental organizations engaged in developmental lawyering and work with
the poor and marginalized sectors in different parts of the country, and as an organization of citizens
of the Philippines and a part of the general public, it has legal standing to institute the petition to
enforce its constitutional right to information on matters of public concern, a right which was denied
to the public by E.O. 464,13 prays, that said order be declared null and void for being unconstitutional
and that respondent Executive Secretary Ermita be ordered to cease from implementing it.

On October 11, 2005, Petitioner Senate of the Philippines, alleging that it has a vital interest in the
resolution of the issue of the validity of E.O. 464 for it stands to suffer imminent and material injury,
as it has already sustained the same with its continued enforcement since it directly interferes with
and impedes the valid exercise of the Senates powers and functions and conceals information of
great public interest and concern, filed its petition for certiorari and prohibition, docketed as G.R. No.
169777 and prays that E.O. 464 be declared unconstitutional.

On October 14, 2005, PDP-Laban, a registered political party with members duly elected into the
Philippine Senate and House of Representatives, filed a similar petition for certiorari and prohibition,
docketed as G.R. No. 169834, alleging that it is affected by the challenged E.O. 464 because it
hampers its legislative agenda to be implemented through its members in Congress, particularly in
the conduct of inquiries in aid of legislation and transcendental issues need to be resolved to avert a
constitutional crisis between the executive and legislative branches of the government.

Meanwhile, by letter14 dated February 6, 2006, Senator Biazon reiterated his invitation to Gen.
Senga for him and other military officers to attend the hearing on the alleged wiretapping scheduled
on February 10, 2005. Gen. Senga replied, however, by letter15 dated February 8, 2006, that
"[p]ursuant to Executive Order No. 464, th[e] Headquarters requested for a clearance from the
President to allow [them] to appear before the public hearing" and that "they will attend once [their]
request is approved by the President." As none of those invited appeared, the hearing on February
10, 2006 was cancelled.16

In another investigation conducted jointly by the Senate Committee on Agriculture and Food and the
Blue Ribbon Committee on the alleged mismanagement and use of the fertilizer fund under the
Ginintuang Masaganang Ani program of the Department of Agriculture (DA), several Cabinet officials
were invited to the hearings scheduled on October 5 and 26, November 24 and December 12, 2005
but most of them failed to attend, DA Undersecretary Belinda Gonzales, DA Assistant Secretary
Felix Jose Montes, Fertilizer and Pesticide Authority Executive Director Norlito R. Gicana,17 and
those from the Department of Budget and Management18 having invoked E.O. 464.

In the budget hearings set by the Senate on February 8 and 13, 2006, Press Secretary and
Presidential Spokesperson Ignacio R. Bunye,19 DOJ Secretary Raul M. Gonzalez20 and Department
of Interior and Local Government Undersecretary Marius P. Corpus21 communicated their inability to
attend due to lack of appropriate clearance from the President pursuant to E.O. 464. During the
February 13, 2005 budget hearing, however, Secretary Bunye was allowed to attend by Executive
Secretary Ermita.

On February 13, 2006, Jose Anselmo I. Cadiz and the incumbent members of the Board of
Governors of the Integrated Bar of the Philippines, as taxpayers, and the Integrated Bar of the
Philippines as the official organization of all Philippine lawyers, all invoking their constitutional right to
be informed on matters of public interest, filed their petition for certiorari and prohibition, docketed as
G.R. No. 171246, and pray that E.O. 464 be declared null and void.

All the petitions pray for the issuance of a Temporary Restraining Order enjoining respondents from
implementing, enforcing, and observing E.O. 464.

In the oral arguments on the petitions conducted on February 21, 2006, the following substantive
issues were ventilated: (1) whether respondents committed grave abuse of discretion in
implementing E.O. 464 prior to its publication in the Official Gazette or in a newspaper of general
circulation; and (2) whether E.O. 464 violates the following provisions of the Constitution: Art. II, Sec.
28, Art. III, Sec. 4, Art. III, Sec. 7, Art. IV. Sec. 1, Art. VI, Sec. 21, Art. VI, Sec. 22, Art. XI, Sec. 1,
and Art. XIII, Sec. 16. The procedural issue of whether there is an actual case or controversy that
calls for judicial review was not taken up; instead, the parties were instructed to discuss it in their
respective memoranda.

After the conclusion of the oral arguments, the parties were directed to submit their respective
memoranda, paying particular attention to the following propositions: (1) that E.O. 464 is, on its face,
unconstitutional; and (2) assuming that it is not, it is unconstitutional as applied in four instances,
namely: (a) the so called Fertilizer scam; (b) the NorthRail investigation (c) the Wiretapping activity
of the ISAFP; and (d) the investigation on the Venable contract.22

Petitioners in G.R. No. 16966023 and G.R. No. 16977724 filed their memoranda on March 7, 2006,
while those in G.R. No. 16966725 and G.R. No. 16983426 filed theirs the next day or on March 8,
2006. Petitioners in G.R. No. 171246 did not file any memorandum.

Petitioners Bayan Muna et al. in G.R. No. 169659, after their motion for extension to file
memorandum27 was granted, subsequently filed a manifestation28 dated March 14, 2006 that it would
no longer file its memorandum in the interest of having the issues resolved soonest, prompting this
Court to issue a Resolution reprimanding them.29
Petitioners submit that E.O. 464 violates the following constitutional provisions:

Art. VI, Sec. 2130

Art. VI, Sec. 2231

Art. VI, Sec. 132

Art. XI, Sec. 133

Art. III, Sec. 734

Art. III, Sec. 435

Art. XIII, Sec. 16 36

Art. II, Sec. 2837

Respondents Executive Secretary Ermita et al., on the other hand, pray in their consolidated
memorandum38 on March 13, 2006 for the dismissal of the petitions for lack of merit.

The Court synthesizes the issues to be resolved as follows:

1. Whether E.O. 464 contravenes the power of inquiry vested in Congress;

2. Whether E.O. 464 violates the right of the people to information on matters of public
concern; and

3. Whether respondents have committed grave abuse of discretion when they implemented
E.O. 464 prior to its publication in a newspaper of general circulation.

Essential requisites for judicial review

Before proceeding to resolve the issue of the constitutionality of E.O. 464, ascertainment of whether
the requisites for a valid exercise of the Courts power of judicial review are present is in order.

Like almost all powers conferred by the Constitution, the power of judicial review is subject to
limitations, to wit: (1) there must be an actual case or controversy calling for the exercise of judicial
power; (2) the person challenging the act must have standing to challenge the validity of the subject
act or issuance; otherwise stated, he must have a personal and substantial interest in the case such
that he has sustained, or will sustain, direct injury as a result of its enforcement; (3) the question of
constitutionality must be raised at the earliest opportunity; and (4) the issue of constitutionality must
be the very lis mota of the case.39

Except with respect to the requisites of standing and existence of an actual case or controversy
where the disagreement between the parties lies, discussion of the rest of the requisites shall be
omitted.

Standing
Respondents, through the Solicitor General, assert that the allegations in G.R. Nos. 169659, 169660
and 169667 make it clear that they, adverting to the non-appearance of several officials of the
executive department in the investigations called by the different committees of the Senate, were
brought to vindicate the constitutional duty of the Senate or its different committees to conduct
inquiry in aid of legislation or in the exercise of its oversight functions. They maintain that
Representatives Ocampo et al. have not shown any specific prerogative, power, and privilege of the
House of Representatives which had been effectively impaired by E.O. 464, there being no mention
of any investigation called by the House of Representatives or any of its committees which was
aborted due to the implementation of E.O. 464.

As for Bayan Munas alleged interest as a party-list representing the marginalized and
underrepresented, and that of the other petitioner groups and individuals who profess to have
standing as advocates and defenders of the Constitution, respondents contend that such interest
falls short of that required to confer standing on them as parties "injured-in-fact."40

Respecting petitioner Chavez, respondents contend that Chavez may not claim an interest as a
taxpayer for the implementation of E.O. 464 does not involve the exercise of taxing or spending
power.41

With regard to the petition filed by the Senate, respondents argue that in the absence of a personal
or direct injury by reason of the issuance of E.O. 464, the Senate and its individual members are not
the proper parties to assail the constitutionality of E.O. 464.

Invoking this Courts ruling in National Economic Protectionism Association v. Ongpin42 and
Valmonte v. Philippine Charity Sweepstakes Office,43 respondents assert that to be considered a
proper party, one must have a personal and substantial interest in the case, such that he has
sustained or will sustain direct injury due to the enforcement of E.O. 464.44

That the Senate of the Philippines has a fundamental right essential not only for intelligent public
decision-making in a democratic system, but more especially for sound legislation45 is not disputed.
E.O. 464, however, allegedly stifles the ability of the members of Congress to access information
that is crucial to law-making.46 Verily, the Senate, including its individual members, has a substantial
and direct interest over the outcome of the controversy and is the proper party to assail the
constitutionality of E.O. 464. Indeed, legislators have standing to maintain inviolate the prerogative,
powers and privileges vested by the Constitution in their office and are allowed to sue to question
the validity of any official action which they claim infringes their prerogatives as legislators.47

In the same vein, party-list representatives Satur Ocampo (Bayan Muna), Teodoro Casino (Bayan
Muna), Joel Virador (Bayan Muna), Crispin Beltran (Anakpawis), Rafael Mariano (Anakpawis), and
Liza Maza (Gabriela) are allowed to sue to question the constitutionality of E.O. 464, the absence of
any claim that an investigation called by the House of Representatives or any of its committees was
aborted due to the implementation of E.O. 464 notwithstanding, it being sufficient that a claim is
made that E.O. 464 infringes on their constitutional rights and duties as members of Congress to
conduct investigation in aid of legislation and conduct oversight functions in the implementation of
laws.

The national political party, Bayan Muna, likewise meets the standing requirement as it obtained
three seats in the House of Representatives in the 2004 elections and is, therefore, entitled to
participate in the legislative process consonant with the declared policy underlying the party list
system of affording citizens belonging to marginalized and underrepresented sectors, organizations
and parties who lack well-defined political constituencies to contribute to the formulation and
enactment of legislation that will benefit the nation.48
As Bayan Muna and Representatives Ocampo et al. have the standing to file their petitions, passing
on the standing of their co-petitioners Courage and Codal is rendered unnecessary.49

In filing their respective petitions, Chavez, the ALG which claims to be an organization of citizens,
and the incumbent members of the IBP Board of Governors and the IBP in behalf of its lawyer
members,50 invoke their constitutional right to information on matters of public concern, asserting that
the right to information, curtailed and violated by E.O. 464, is essential to the effective exercise of
other constitutional rights51 and to the maintenance of the balance of power among the three
branches of the government through the principle of checks and balances.52

It is well-settled that when suing as a citizen, the interest of the petitioner in assailing the
constitutionality of laws, presidential decrees, orders, and other regulations, must be direct and
personal. In Franciso v. House of Representatives,53 this Court held that when the proceeding
involves the assertion of a public right, the mere fact that he is a citizen satisfies the requirement of
personal interest.

As for petitioner PDP-Laban, it asseverates that it is clothed with legal standing in view of the
transcendental issues raised in its petition which this Court needs to resolve in order to avert a
constitutional crisis. For it to be accorded standing on the ground of transcendental importance,
however, it must establish (1) the character of the funds (that it is public) or other assets involved in
the case, (2) the presence of a clear case of disregard of a constitutional or statutory prohibition by
the public respondent agency or instrumentality of the government, and (3) the lack of any party with
a more direct and specific interest in raising the questions being raised.54 The first and last
determinants not being present as no public funds or assets are involved and petitioners in G.R.
Nos. 169777 and 169659 have direct and specific interests in the resolution of the controversy,
petitioner PDP-Laban is bereft of standing to file its petition. Its allegation that E.O. 464 hampers its
legislative agenda is vague and uncertain, and at best is only a "generalized interest" which it shares
with the rest of the political parties. Concrete injury, whether actual or threatened, is that
indispensable element of a dispute which serves in part to cast it in a form traditionally capable of
judicial resolution.55 In fine, PDP-Labans alleged interest as a political party does not suffice to
clothe it with legal standing.

Actual Case or Controversy

Petitioners assert that an actual case exists, they citing the absence of the executive officials invited
by the Senate to its hearings after the issuance of E.O. 464, particularly those on the NorthRail
project and the wiretapping controversy.

Respondents counter that there is no case or controversy, there being no showing that President
Arroyo has actually withheld her consent or prohibited the appearance of the invited officials.56 These
officials, they claim, merely communicated to the Senate that they have not yet secured the consent
of the President, not that the President prohibited their attendance.57 Specifically with regard to the
AFP officers who did not attend the hearing on September 28, 2005, respondents claim that the
instruction not to attend without the Presidents consent was based on its role as Commander-in-
Chief of the Armed Forces, not on E.O. 464.

Respondents thus conclude that the petitions merely rest on an unfounded apprehension that the
President will abuse its power of preventing the appearance of officials before Congress, and that
such apprehension is not sufficient for challenging the validity of E.O. 464.

The Court finds respondents assertion that the President has not withheld her consent or prohibited
the appearance of the officials concerned immaterial in determining the existence of an actual case
or controversy insofar as E.O. 464 is concerned. For E.O. 464 does not require either a deliberate
withholding of consent or an express prohibition issuing from the President in order to bar officials
from appearing before Congress.

As the implementation of the challenged order has already resulted in the absence of officials invited
to the hearings of petitioner Senate of the Philippines, it would make no sense to wait for any further
event before considering the present case ripe for adjudication. Indeed, it would be sheer
abandonment of duty if this Court would now refrain from passing on the constitutionality of E.O.
464.

Constitutionality of E.O. 464

E.O. 464, to the extent that it bars the appearance of executive officials before Congress, deprives
Congress of the information in the possession of these officials. To resolve the question of whether
such withholding of information violates the Constitution, consideration of the general power of
Congress to obtain information, otherwise known as the power of inquiry, is in order.

The power of inquiry

The Congress power of inquiry is expressly recognized in Section 21 of Article VI of the Constitution
which reads:

SECTION 21. The Senate or the House of Representatives or any of its respective committees may
conduct inquiries in aid of legislation in accordance with its duly published rules of procedure. The
rights of persons appearing in or affected by such inquiries shall be respected. (Underscoring
supplied)

This provision is worded exactly as Section 8 of Article VIII of the 1973 Constitution except that, in
the latter, it vests the power of inquiry in the unicameral legislature established therein the
Batasang Pambansa and its committees.

The 1935 Constitution did not contain a similar provision. Nonetheless, in Arnault v. Nazareno,58 a
case decided in 1950 under that Constitution, the Court already recognized that the power of inquiry
is inherent in the power to legislate.

Arnault involved a Senate investigation of the reportedly anomalous purchase of the Buenavista and
Tambobong Estates by the Rural Progress Administration. Arnault, who was considered a leading
witness in the controversy, was called to testify thereon by the Senate. On account of his refusal to
answer the questions of the senators on an important point, he was, by resolution of the Senate,
detained for contempt. Upholding the Senates power to punish Arnault for contempt, this Court held:

Although there is no provision in the Constitution expressly investing either House of Congress with
power to make investigations and exact testimony to the end that it may exercise its legislative
functions advisedly and effectively, such power is so far incidental to the legislative function as to be
implied. In other words, the power of inquiry with process to enforce it is an essential and
appropriate auxiliary to the legislative function. A legislative body cannot legislate wisely or
effectively in the absence of information respecting the conditions which the legislation is intended to
affect or change; and where the legislative body does not itself possess the requisite information
which is not infrequently true recourse must be had to others who do possess it. Experience has
shown that mere requests for such information are often unavailing, and also that information which
is volunteered is not always accurate or complete; so some means of compulsion is essential to
obtain what is needed.59 . . . (Emphasis and underscoring supplied)
That this power of inquiry is broad enough to cover officials of the executive branch may be deduced
from the same case. The power of inquiry, the Court therein ruled, is co-extensive with the power to
legislate.60 The matters which may be a proper subject of legislation and those which may be a
proper subject of investigation are one. It follows that the operation of government, being a legitimate
subject for legislation, is a proper subject for investigation.

Thus, the Court found that the Senate investigation of the government transaction involved in Arnault
was a proper exercise of the power of inquiry. Besides being related to the expenditure of public
funds of which Congress is the guardian, the transaction, the Court held, "also involved government
agencies created by Congress and officers whose positions it is within the power of Congress to
regulate or even abolish."

Since Congress has authority to inquire into the operations of the executive branch, it would be
incongruous to hold that the power of inquiry does not extend to executive officials who are the most
familiar with and informed on executive operations.

As discussed in Arnault, the power of inquiry, "with process to enforce it," is grounded on the
necessity of information in the legislative process. If the information possessed by executive officials
on the operation of their offices is necessary for wise legislation on that subject, by parity of
reasoning, Congress has the right to that information and the power to compel the disclosure
thereof.

As evidenced by the American experience during the so-called "McCarthy era," however, the right of
Congress to conduct inquiries in aid of legislation is, in theory, no less susceptible to abuse than
executive or judicial power. It may thus be subjected to judicial review pursuant to the Courts
certiorari powers under Section 1, Article VIII of the Constitution.

For one, as noted in Bengzon v. Senate Blue Ribbon Committee,61 the inquiry itself might not
properly be in aid of legislation, and thus beyond the constitutional power of Congress. Such inquiry
could not usurp judicial functions. Parenthetically, one possible way for Congress to avoid such a
result as occurred in Bengzon is to indicate in its invitations to the public officials concerned, or to
any person for that matter, the possible needed statute which prompted the need for the inquiry.
Given such statement in its invitations, along with the usual indication of the subject of inquiry and
the questions relative to and in furtherance thereof, there would be less room for speculation on the
part of the person invited on whether the inquiry is in aid of legislation.

Section 21, Article VI likewise establishes crucial safeguards that proscribe the legislative power of
inquiry. The provision requires that the inquiry be done in accordance with the Senate or Houses
duly published rules of procedure, necessarily implying the constitutional infirmity of an inquiry
conducted without duly published rules of procedure. Section 21 also mandates that the rights of
persons appearing in or affected by such inquiries be respected, an imposition that obligates
Congress to adhere to the guarantees in the Bill of Rights.

These abuses are, of course, remediable before the courts, upon the proper suit filed by the persons
affected, even if they belong to the executive branch. Nonetheless, there may be exceptional
circumstances, none appearing to obtain at present, wherein a clear pattern of abuse of the
legislative power of inquiry might be established, resulting in palpable violations of the rights
guaranteed to members of the executive department under the Bill of Rights. In such instances,
depending on the particulars of each case, attempts by the Executive Branch to forestall these
abuses may be accorded judicial sanction.
Even where the inquiry is in aid of legislation, there are still recognized exemptions to the power of
inquiry, which exemptions fall under the rubric of "executive privilege." Since this term figures
prominently in the challenged order, it being mentioned in its provisions, its preambular
clauses,62 and in its very title, a discussion of executive privilege is crucial for determining the
constitutionality of E.O. 464.

Executive privilege

The phrase "executive privilege" is not new in this jurisdiction. It has been used even prior to the
promulgation of the 1986 Constitution.63 Being of American origin, it is best understood in light of
how it has been defined and used in the legal literature of the United States.

Schwartz defines executive privilege as "the power of the Government to withhold information from
the public, the courts, and the Congress."64 Similarly, Rozell defines it as "the right of the President
and high-level executive branch officers to withhold information from Congress, the courts, and
ultimately the public."65

Executive privilege is, nonetheless, not a clear or unitary concept. 66 It has encompassed claims of
varying kinds.67Tribe, in fact, comments that while it is customary to employ the phrase "executive
privilege," it may be more accurate to speak of executive privileges "since presidential refusals to
furnish information may be actuated by any of at least three distinct kinds of considerations, and may
be asserted, with differing degrees of success, in the context of either judicial or legislative
investigations."

One variety of the privilege, Tribe explains, is the state secrets privilege invoked by U.S. Presidents,
beginning with Washington, on the ground that the information is of such nature that its disclosure
would subvert crucial military or diplomatic objectives. Another variety is the informers privilege, or
the privilege of the Government not to disclose the identity of persons who furnish information of
violations of law to officers charged with the enforcement of that law. Finally, a generic privilege for
internal deliberations has been said to attach to intragovernmental documents reflecting advisory
opinions, recommendations and deliberations comprising part of a process by which governmental
decisions and policies are formulated. 68

Tribes comment is supported by the ruling in In re Sealed Case, thus:

Since the beginnings of our nation, executive officials have claimed a variety of privileges to resist
disclosure of information the confidentiality of which they felt was crucial to fulfillment of the unique
role and responsibilities of the executive branch of our government. Courts ruled early that the
executive had a right to withhold documents that might reveal military or state secrets. The courts
have also granted the executive a right to withhold the identity of government informers in some
circumstances and a qualified right to withhold information related to pending investigations. x x
x"69 (Emphasis and underscoring supplied)

The entry in Blacks Law Dictionary on "executive privilege" is similarly instructive regarding the
scope of the doctrine.

This privilege, based on the constitutional doctrine of separation of powers, exempts the executive
from disclosure requirements applicable to the ordinary citizen or organization where such
exemption is necessary to the discharge of highly important executive responsibilities involved in
maintaining governmental operations, and extends not only to military and diplomatic secrets but
also to documents integral to an appropriate exercise of the executive domestic decisional and
policy making functions, that is, those documents reflecting the frank expression necessary in intra-
governmental advisory and deliberative communications.70 (Emphasis and underscoring supplied)

That a type of information is recognized as privileged does not, however, necessarily mean that it
would be considered privileged in all instances. For in determining the validity of a claim of privilege,
the question that must be asked is not only whether the requested information falls within one of the
traditional privileges, but also whether that privilege should be honored in a given procedural
setting.71

The leading case on executive privilege in the United States is U.S. v. Nixon, 72 decided in 1974. In
issue in that case was the validity of President Nixons claim of executive privilege against a
subpoena issued by a district court requiring the production of certain tapes and documents relating
to the Watergate investigations. The claim of privilege was based on the Presidents general interest
in the confidentiality of his conversations and correspondence. The U.S. Court held that while there
is no explicit reference to a privilege of confidentiality in the U.S. Constitution, it is constitutionally
based to the extent that it relates to the effective discharge of a Presidents powers. The Court,
nonetheless, rejected the Presidents claim of privilege, ruling that the privilege must be balanced
against the public interest in the fair administration of criminal justice. Notably, the Court was careful
to clarify that it was not there addressing the issue of claims of privilege in a civil litigation or against
congressional demands for information.

Cases in the U.S. which involve claims of executive privilege against Congress are rare.73 Despite
frequent assertion of the privilege to deny information to Congress, beginning with President
Washingtons refusal to turn over treaty negotiation records to the House of Representatives, the
U.S. Supreme Court has never adjudicated the issue.74 However, the U.S. Court of Appeals for the
District of Columbia Circuit, in a case decided earlier in the same year as Nixon, recognized the
Presidents privilege over his conversations against a congressional subpoena.75 Anticipating the
balancing approach adopted by the U.S. Supreme Court in Nixon, the Court of Appeals weighed the
public interest protected by the claim of privilege against the interest that would be served by
disclosure to the Committee. Ruling that the balance favored the President, the Court declined to
enforce the subpoena. 76

In this jurisdiction, the doctrine of executive privilege was recognized by this Court in Almonte v.
Vasquez.77Almonte used the term in reference to the same privilege subject of Nixon. It quoted the
following portion of the Nixon decision which explains the basis for the privilege:

"The expectation of a President to the confidentiality of his conversations and correspondences, like
the claim of confidentiality of judicial deliberations, for example, has all the values to which we
accord deference for the privacy of all citizens and, added to those values, is the necessity for
protection of the public interest in candid, objective, and even blunt or harsh opinions in Presidential
decision-making. A President and those who assist him must be free to explore alternatives in the
process of shaping policies and making decisions and to do so in a way many would be unwilling to
express except privately. These are the considerations justifying a presumptive privilege for
Presidential communications. The privilege is fundamental to the operation of government and
inextricably rooted in the separation of powers under the Constitution x x x " (Emphasis and
underscoring supplied)

Almonte involved a subpoena duces tecum issued by the Ombudsman against the therein
petitioners. It did not involve, as expressly stated in the decision, the right of the people to
information.78 Nonetheless, the Court recognized that there are certain types of information which the
government may withhold from the public, thus acknowledging, in substance if not in name, that
executive privilege may be claimed against citizens demands for information.
In Chavez v. PCGG,79 the Court held that this jurisdiction recognizes the common law holding that
there is a "governmental privilege against public disclosure with respect to state secrets regarding
military, diplomatic and other national security matters."80 The same case held that closed-door
Cabinet meetings are also a recognized limitation on the right to information.

Similarly, in Chavez v. Public Estates Authority,81 the Court ruled that the right to information does
not extend to matters recognized as "privileged information under the separation of powers,"82 by
which the Court meant Presidential conversations, correspondences, and discussions in closed-door
Cabinet meetings. It also held that information on military and diplomatic secrets and those affecting
national security, and information on investigations of crimes by law enforcement agencies before
the prosecution of the accused were exempted from the right to information.

From the above discussion on the meaning and scope of executive privilege, both in the United
States and in this jurisdiction, a clear principle emerges. Executive privilege, whether asserted
against Congress, the courts, or the public, is recognized only in relation to certain types of
information of a sensitive character. While executive privilege is a constitutional concept, a claim
thereof may be valid or not depending on the ground invoked to justify it and the context in which it is
made. Noticeably absent is any recognition that executive officials are exempt from the duty to
disclose information by the mere fact of being executive officials. Indeed, the extraordinary character
of the exemptions indicates that the presumption inclines heavily against executive secrecy and in
favor of disclosure.

Validity of Section 1

Section 1 is similar to Section 3 in that both require the officials covered by them to secure the
consent of the President prior to appearing before Congress. There are significant differences
between the two provisions, however, which constrain this Court to discuss the validity of these
provisions separately.

Section 1 specifically applies to department heads. It does not, unlike Section 3, require a prior
determination by any official whether they are covered by E.O. 464. The President herself has,
through the challenged order, made the determination that they are. Further, unlike also Section 3,
the coverage of department heads under Section 1 is not made to depend on the department heads
possession of any information which might be covered by executive privilege. In fact, in marked
contrast to Section 3 vis--vis Section 2, there is no reference to executive privilege at all. Rather,
the required prior consent under Section 1 is grounded on Article VI, Section 22 of the Constitution
on what has been referred to as the question hour.

SECTION 22. The heads of departments may upon their own initiative, with the consent of the
President, or upon the request of either House, as the rules of each House shall provide, appear
before and be heard by such House on any matter pertaining to their departments. Written questions
shall be submitted to the President of the Senate or the Speaker of the House of Representatives at
least three days before their scheduled appearance. Interpellations shall not be limited to written
questions, but may cover matters related thereto. When the security of the State or the public
interest so requires and the President so states in writing, the appearance shall be conducted in
executive session.

Determining the validity of Section 1 thus requires an examination of the meaning of Section 22 of
Article VI. Section 22 which provides for the question hour must be interpreted vis--vis Section 21
which provides for the power of either House of Congress to "conduct inquiries in aid of legislation."
As the following excerpt of the deliberations of the Constitutional Commission shows, the framers
were aware that these two provisions involved distinct functions of Congress.
MR. MAAMBONG. x x x When we amended Section 20 [now Section 22 on the Question Hour]
yesterday, I noticed that members of the Cabinet cannot be compelled anymore to appear before the
House of Representatives or before the Senate. I have a particular problem in this regard, Madam
President, because in our experience in the Regular Batasang Pambansa as the Gentleman
himself has experienced in the interim Batasang Pambansa one of the most competent inputs that
we can put in our committee deliberations, either in aid of legislation or in congressional
investigations, is the testimonies of Cabinet ministers. We usually invite them, but if they do not
come and it is a congressional investigation, we usually issue subpoenas.

I want to be clarified on a statement made by Commissioner Suarez when he said that the fact that
the Cabinet ministers may refuse to come to the House of Representatives or the Senate [when
requested under Section 22] does not mean that they need not come when they are invited or
subpoenaed by the committee of either House when it comes to inquiries in aid of legislation or
congressional investigation. According to Commissioner Suarez, that is allowed and their presence
can be had under Section 21. Does the gentleman confirm this, Madam President?

MR. DAVIDE. We confirm that, Madam President, because Section 20 refers only to what was
originally the Question Hour, whereas, Section 21 would refer specifically to inquiries in aid of
legislation, under which anybody for that matter, may be summoned and if he refuses, he can be
held in contempt of the House.83 (Emphasis and underscoring supplied)

A distinction was thus made between inquiries in aid of legislation and the question hour. While
attendance was meant to be discretionary in the question hour, it was compulsory in inquiries in aid
of legislation. The reference to Commissioner Suarez bears noting, he being one of the proponents
of the amendment to make the appearance of department heads discretionary in the question hour.

So clearly was this distinction conveyed to the members of the Commission that the Committee on
Style, precisely in recognition of this distinction, later moved the provision on question hour from its
original position as Section 20 in the original draft down to Section 31, far from the provision on
inquiries in aid of legislation. This gave rise to the following exchange during the deliberations:

MR. GUINGONA. [speaking in his capacity as Chairman of the Committee on Style] We now go, Mr.
Presiding Officer, to the Article on Legislative and may I request the chairperson of the Legislative
Department, Commissioner Davide, to give his reaction.

THE PRESIDING OFFICER (Mr. Jamir). Commissioner Davide is recognized. |avv phi|.net

MR. DAVIDE. Thank you, Mr. Presiding Officer. I have only one reaction to the Question Hour. I
propose that instead of putting it as Section 31, it should follow Legislative Inquiries.

THE PRESIDING OFFICER. What does the committee say?

MR. GUINGONA. I ask Commissioner Maambong to reply, Mr. Presiding Officer.

MR. MAAMBONG. Actually, we considered that previously when we sequenced this but we
reasoned that in Section 21, which is Legislative Inquiry, it is actually a power of Congress in terms
of its own lawmaking; whereas, a Question Hour is not actually a power in terms of its own
lawmaking power because in Legislative Inquiry, it is in aid of legislation. And so we put Question
Hour as Section 31. I hope Commissioner Davide will consider this.
MR. DAVIDE. The Question Hour is closely related with the legislative power, and it is precisely as a
complement to or a supplement of the Legislative Inquiry. The appearance of the members of
Cabinet would be very, very essential not only in the application of check and balance but also, in
effect, in aid of legislation.

MR. MAAMBONG. After conferring with the committee, we find merit in the suggestion of
Commissioner Davide. In other words, we are accepting that and so this Section 31 would now
become Section 22. Would it be, Commissioner Davide?

MR. DAVIDE. Yes.84 (Emphasis and underscoring supplied)

Consistent with their statements earlier in the deliberations, Commissioners Davide and Maambong
proceeded from the same assumption that these provisions pertained to two different functions of
the legislature. Both Commissioners understood that the power to conduct inquiries in aid of
legislation is different from the power to conduct inquiries during the question hour. Commissioner
Davides only concern was that the two provisions on these distinct powers be placed closely
together, they being complementary to each other. Neither Commissioner considered them as
identical functions of Congress.

The foregoing opinion was not the two Commissioners alone. From the above-quoted exchange,
Commissioner Maambongs committee the Committee on Style shared the view that the two
provisions reflected distinct functions of Congress. Commissioner Davide, on the other hand, was
speaking in his capacity as Chairman of the Committee on the Legislative Department. His views
may thus be presumed as representing that of his Committee.

In the context of a parliamentary system of government, the "question hour" has a definite meaning.
It is a period of confrontation initiated by Parliament to hold the Prime Minister and the other
ministers accountable for their acts and the operation of the government,85 corresponding to what is
known in Britain as the question period. There was a specific provision for a question hour in the
1973 Constitution86 which made the appearance of ministers mandatory. The same perfectly
conformed to the parliamentary system established by that Constitution, where the ministers are also
members of the legislature and are directly accountable to it.

An essential feature of the parliamentary system of government is the immediate accountability of


the Prime Minister and the Cabinet to the National Assembly. They shall be responsible to the
National Assembly for the program of government and shall determine the guidelines of national
policy. Unlike in the presidential system where the tenure of office of all elected officials cannot be
terminated before their term expired, the Prime Minister and the Cabinet remain in office only as long
as they enjoy the confidence of the National Assembly. The moment this confidence is lost the Prime
Minister and the Cabinet may be changed.87

The framers of the 1987 Constitution removed the mandatory nature of such appearance during the
question hour in the present Constitution so as to conform more fully to a system of separation of
powers.88 To that extent, the question hour, as it is presently understood in this jurisdiction, departs
from the question period of the parliamentary system. That department heads may not be required to
appear in a question hour does not, however, mean that the legislature is rendered powerless to
elicit information from them in all circumstances. In fact, in light of the absence of a mandatory
question period, the need to enforce Congress right to executive information in the performance of
its legislative function becomes more imperative. As Schwartz observes:

Indeed, if the separation of powers has anything to tell us on the subject under discussion, it is that
the Congress has the right to obtain information from any source even from officials of
departments and agencies in the executive branch. In the United States there is, unlike the situation
which prevails in a parliamentary system such as that in Britain, a clear separation between the
legislative and executive branches. It is this very separation that makes the congressional right to
obtain information from the executive so essential, if the functions of the Congress as the elected
representatives of the people are adequately to be carried out. The absence of close rapport
between the legislative and executive branches in this country, comparable to those which exist
under a parliamentary system, and the nonexistence in the Congress of an institution such as the
British question period have perforce made reliance by the Congress upon its right to obtain
information from the executive essential, if it is intelligently to perform its legislative tasks. Unless the
Congress possesses the right to obtain executive information, its power of oversight of
administration in a system such as ours becomes a power devoid of most of its practical content,
since it depends for its effectiveness solely upon information parceled out ex gratia by the
executive.89 (Emphasis and underscoring supplied)

Sections 21 and 22, therefore, while closely related and complementary to each other, should not be
considered as pertaining to the same power of Congress. One specifically relates to the power to
conduct inquiries in aid of legislation, the aim of which is to elicit information that may be used for
legislation, while the other pertains to the power to conduct a question hour, the objective of which is
to obtain information in pursuit of Congress oversight function.

When Congress merely seeks to be informed on how department heads are implementing the
statutes which it has issued, its right to such information is not as imperative as that of the President
to whom, as Chief Executive, such department heads must give a report of their performance as a
matter of duty. In such instances, Section 22, in keeping with the separation of powers, states that
Congress may only request their appearance. Nonetheless, when the inquiry in which Congress
requires their appearance is "in aid of legislation" under Section 21, the appearance is mandatory for
the same reasons stated in Arnault.90

In fine, the oversight function of Congress may be facilitated by compulsory process only to the
extent that it is performed in pursuit of legislation. This is consistent with the intent discerned from
the deliberations of the Constitutional Commission.

Ultimately, the power of Congress to compel the appearance of executive officials under Section 21
and the lack of it under Section 22 find their basis in the principle of separation of powers. While the
executive branch is a co-equal branch of the legislature, it cannot frustrate the power of Congress to
legislate by refusing to comply with its demands for information.

When Congress exercises its power of inquiry, the only way for department heads to exempt
themselves therefrom is by a valid claim of privilege. They are not exempt by the mere fact that they
are department heads. Only one executive official may be exempted from this power the
President on whom executive power is vested, hence, beyond the reach of Congress except through
the power of impeachment. It is based on her being the highest official of the executive branch, and
the due respect accorded to a co-equal branch of government which is sanctioned by a long-
standing custom.

By the same token, members of the Supreme Court are also exempt from this power of inquiry.
Unlike the Presidency, judicial power is vested in a collegial body; hence, each member thereof is
exempt on the basis not only of separation of powers but also on the fiscal autonomy and the
constitutional independence of the judiciary. This point is not in dispute, as even counsel for the
Senate, Sen. Joker Arroyo, admitted it during the oral argument upon interpellation of the Chief
Justice.
Having established the proper interpretation of Section 22, Article VI of the Constitution, the Court
now proceeds to pass on the constitutionality of Section 1 of E.O. 464.

Section 1, in view of its specific reference to Section 22 of Article VI of the Constitution and the
absence of any reference to inquiries in aid of legislation, must be construed as limited in its
application to appearances of department heads in the question hour contemplated in the provision
of said Section 22 of Article VI. The reading is dictated by the basic rule of construction that
issuances must be interpreted, as much as possible, in a way that will render it constitutional.

The requirement then to secure presidential consent under Section 1, limited as it is only to
appearances in the question hour, is valid on its face. For under Section 22, Article VI of the
Constitution, the appearance of department heads in the question hour is discretionary on their part.

Section 1 cannot, however, be applied to appearances of department heads in inquiries in aid of


legislation. Congress is not bound in such instances to respect the refusal of the department head to
appear in such inquiry, unless a valid claim of privilege is subsequently made, either by the
President herself or by the Executive Secretary.

Validity of Sections 2 and 3

Section 3 of E.O. 464 requires all the public officials enumerated in Section 2(b) to secure the
consent of the President prior to appearing before either house of Congress. The enumeration is
broad. It covers all senior officials of executive departments, all officers of the AFP and the PNP, and
all senior national security officials who, in the judgment of the heads of offices designated in the
same section (i.e. department heads, Chief of Staff of the AFP, Chief of the PNP, and the National
Security Adviser), are "covered by the executive privilege."

The enumeration also includes such other officers as may be determined by the President. Given
the title of Section 2 "Nature, Scope and Coverage of Executive Privilege" , it is evident that
under the rule of ejusdem generis, the determination by the President under this provision is
intended to be based on a similar finding of coverage under executive privilege.

En passant, the Court notes that Section 2(b) of E.O. 464 virtually states that executive privilege
actually covers persons. Such is a misuse of the doctrine. Executive privilege, as discussed above,
is properly invoked in relation to specific categories of information and not to categories of persons.

In light, however, of Sec 2(a) of E.O. 464 which deals with the nature, scope and coverage of
executive privilege, the reference to persons being "covered by the executive privilege" may be read
as an abbreviated way of saying that the person is in possession of information which is, in the
judgment of the head of office concerned, privileged as defined in Section 2(a). The Court shall thus
proceed on the assumption that this is the intention of the challenged order.

Upon a determination by the designated head of office or by the President that an official is "covered
by the executive privilege," such official is subjected to the requirement that he first secure the
consent of the President prior to appearing before Congress. This requirement effectively bars the
appearance of the official concerned unless the same is permitted by the President. The proviso
allowing the President to give its consent means nothing more than that the President may reverse a
prohibition which already exists by virtue of E.O. 464.

Thus, underlying this requirement of prior consent is the determination by a head of office,
authorized by the President under E.O. 464, or by the President herself, that such official is in
possession of information that is covered by executive privilege. This determination then becomes
the basis for the officials not showing up in the legislative investigation.

In view thereof, whenever an official invokes E.O. 464 to justify his failure to be present, such
invocation must be construed as a declaration to Congress that the President, or a head of office
authorized by the President, has determined that the requested information is privileged, and that
the President has not reversed such determination. Such declaration, however, even without
mentioning the term "executive privilege," amounts to an implied claim that the information is being
withheld by the executive branch, by authority of the President, on the basis of executive privilege.
Verily, there is an implied claim of privilege.

The letter dated September 28, 2005 of respondent Executive Secretary Ermita to Senate President
Drilon illustrates the implied nature of the claim of privilege authorized by E.O. 464. It reads:

In connection with the inquiry to be conducted by the Committee of the Whole regarding the Northrail
Project of the North Luzon Railways Corporation on 29 September 2005 at 10:00 a.m., please be
informed that officials of the Executive Department invited to appear at the meeting will not be able
to attend the same without the consent of the President, pursuant to Executive Order No. 464 (s.
2005), entitled "Ensuring Observance Of The Principle Of Separation Of Powers, Adherence To The
Rule On Executive Privilege And Respect For The Rights Of Public Officials Appearing In Legislative
Inquiries In Aid Of Legislation Under The Constitution, And For Other Purposes". Said officials have
not secured the required consent from the President. (Underscoring supplied)

The letter does not explicitly invoke executive privilege or that the matter on which these officials are
being requested to be resource persons falls under the recognized grounds of the privilege to justify
their absence. Nor does it expressly state that in view of the lack of consent from the President
under E.O. 464, they cannot attend the hearing.

Significant premises in this letter, however, are left unstated, deliberately or not. The letter assumes
that the invited officials are covered by E.O. 464. As explained earlier, however, to be covered by the
order means that a determination has been made, by the designated head of office or the President,
that the invited official possesses information that is covered by executive privilege. Thus, although it
is not stated in the letter that such determination has been made, the same must be deemed
implied. Respecting the statement that the invited officials have not secured the consent of the
President, it only means that the President has not reversed the standing prohibition against their
appearance before Congress.

Inevitably, Executive Secretary Ermitas letter leads to the conclusion that the executive branch,
either through the President or the heads of offices authorized under E.O. 464, has made a
determination that the information required by the Senate is privileged, and that, at the time of
writing, there has been no contrary pronouncement from the President. In fine, an implied claim of
privilege has been made by the executive.

While there is no Philippine case that directly addresses the issue of whether executive privilege
may be invoked against Congress, it is gathered from Chavez v. PEA that certain information in the
possession of the executive may validly be claimed as privileged even against Congress. Thus, the
case holds:

There is no claim by PEA that the information demanded by petitioner is privileged information
rooted in the separation of powers. The information does not cover Presidential conversations,
correspondences, or discussions during closed-door Cabinet meetings which, like internal-
deliberations of the Supreme Court and other collegiate courts, or executive sessions of either house
of Congress, are recognized as confidential. This kind of information cannot be pried open by a co-
equal branch of government. A frank exchange of exploratory ideas and assessments, free from the
glare of publicity and pressure by interested parties, is essential to protect the independence of
decision-making of those tasked to exercise Presidential, Legislative and Judicial power. This is not
the situation in the instant case.91 (Emphasis and underscoring supplied)

Section 3 of E.O. 464, therefore, cannot be dismissed outright as invalid by the mere fact that it
sanctions claims of executive privilege. This Court must look further and assess the claim of
privilege authorized by the Order to determine whether it is valid.

While the validity of claims of privilege must be assessed on a case to case basis, examining the
ground invoked therefor and the particular circumstances surrounding it, there is, in an implied claim
of privilege, a defect that renders it invalid per se. By its very nature, and as demonstrated by the
letter of respondent Executive Secretary quoted above, the implied claim authorized by Section 3 of
E.O. 464 is not accompanied by any specific allegation of the basis thereof (e.g., whether the
information demanded involves military or diplomatic secrets, closed-door Cabinet meetings, etc.).
While Section 2(a) enumerates the types of information that are covered by the privilege under the
challenged order, Congress is left to speculate as to which among them is being referred to by the
executive. The enumeration is not even intended to be comprehensive, but a mere statement of
what is included in the phrase "confidential or classified information between the President and the
public officers covered by this executive order."

Certainly, Congress has the right to know why the executive considers the requested information
privileged. It does not suffice to merely declare that the President, or an authorized head of office,
has determined that it is so, and that the President has not overturned that determination. Such
declaration leaves Congress in the dark on how the requested information could be classified as
privileged. That the message is couched in terms that, on first impression, do not seem like a claim
of privilege only makes it more pernicious. It threatens to make Congress doubly blind to the
question of why the executive branch is not providing it with the information that it has requested.

A claim of privilege, being a claim of exemption from an obligation to disclose information, must,
therefore, be clearly asserted. As U.S. v. Reynolds teaches:

The privilege belongs to the government and must be asserted by it; it can neither be claimed nor
waived by a private party. It is not to be lightly invoked. There must be a formal claim of privilege,
lodged by the head of the department which has control over the matter, after actual personal
consideration by that officer. The court itself must determine whether the circumstances are
appropriate for the claim of privilege, and yet do so without forcing a disclosure of the very thing the
privilege is designed to protect.92 (Underscoring supplied)

Absent then a statement of the specific basis of a claim of executive privilege, there is no way of
determining whether it falls under one of the traditional privileges, or whether, given the
circumstances in which it is made, it should be respected.93 These, in substance, were the same
criteria in assessing the claim of privilege asserted against the Ombudsman in Almonte v.
Vasquez94 and, more in point, against a committee of the Senate in Senate Select Committee on
Presidential Campaign Activities v. Nixon.95

A.O. Smith v. Federal Trade Commission is enlightening:

[T]he lack of specificity renders an assessment of the potential harm resulting from disclosure
impossible, thereby preventing the Court from balancing such harm against plaintiffs needs to
determine whether to override any claims of privilege.96 (Underscoring supplied)
And so is U.S. v. Article of Drug:97

On the present state of the record, this Court is not called upon to perform this balancing operation.
In stating its objection to claimants interrogatories, government asserts, and nothing more, that the
disclosures sought by claimant would inhibit the free expression of opinion that non-disclosure is
designed to protect. The government has not shown nor even alleged that those who evaluated
claimants product were involved in internal policymaking, generally, or in this particular instance.
Privilege cannot be set up by an unsupported claim. The facts upon which the privilege is based
must be established. To find these interrogatories objectionable, this Court would have to assume
that the evaluation and classification of claimants products was a matter of internal policy
formulation, an assumption in which this Court is unwilling to indulge sua sponte.98 (Emphasis and
underscoring supplied)

Mobil Oil Corp. v. Department of Energy99 similarly emphasizes that "an agency must provide
precise and certain reasons for preserving the confidentiality of requested information."

Black v. Sheraton Corp. of America100 amplifies, thus:

A formal and proper claim of executive privilege requires a specific designation and description of
the documents within its scope as well as precise and certain reasons for preserving their
confidentiality. Without this specificity, it is impossible for a court to analyze the claim short of
disclosure of the very thing sought to be protected. As the affidavit now stands, the Court has little
more than its sua sponte speculation with which to weigh the applicability of the claim. An improperly
asserted claim of privilege is no claim of privilege. Therefore, despite the fact that a claim was made
by the proper executive as Reynolds requires, the Court can not recognize the claim in the instant
case because it is legally insufficient to allow the Court to make a just and reasonable determination
as to its applicability. To recognize such a broad claim in which the Defendant has given no precise
or compelling reasons to shield these documents from outside scrutiny, would make a farce of the
whole procedure.101 (Emphasis and underscoring supplied)

Due respect for a co-equal branch of government, moreover, demands no less than a claim of
privilege clearly stating the grounds therefor. Apropos is the following ruling in McPhaul v. U.S:102

We think the Courts decision in United States v. Bryan, 339 U.S. 323, 70 S. Ct. 724, is highly
relevant to these questions. For it is as true here as it was there, that if (petitioner) had legitimate
reasons for failing to produce the records of the association, a decent respect for the House of
Representatives, by whose authority the subpoenas issued, would have required that (he) state (his)
reasons for noncompliance upon the return of the writ. Such a statement would have given the
Subcommittee an opportunity to avoid the blocking of its inquiry by taking other appropriate steps to
obtain the records. To deny the Committee the opportunity to consider the objection or remedy is in
itself a contempt of its authority and an obstruction of its processes. His failure to make any such
statement was "a patent evasion of the duty of one summoned to produce papers before a
congressional committee[, and] cannot be condoned." (Emphasis and underscoring supplied;
citations omitted)

Upon the other hand, Congress must not require the executive to state the reasons for the claim with
such particularity as to compel disclosure of the information which the privilege is meant to
protect.103 A useful analogy in determining the requisite degree of particularity would be the privilege
against self-incrimination. Thus, Hoffman v. U.S.104 declares:

The witness is not exonerated from answering merely because he declares that in so doing he would
incriminate himself his say-so does not of itself establish the hazard of incrimination. It is for the
court to say whether his silence is justified, and to require him to answer if it clearly appears to the
court that he is mistaken. However, if the witness, upon interposing his claim, were required to
prove the hazard in the sense in which a claim is usually required to be established in court, he
would be compelled to surrender the very protection which the privilege is designed to guarantee. To
sustain the privilege, it need only be evident from the implications of the question, in the setting in
which it is asked, that a responsive answer to the question or an explanation of why it cannot be
answered might be dangerous because injurious disclosure could result." x x x (Emphasis and
underscoring supplied)

The claim of privilege under Section 3 of E.O. 464 in relation to Section 2(b) is thus invalid per se. It
is not asserted. It is merely implied. Instead of providing precise and certain reasons for the claim, it
merely invokes E.O. 464, coupled with an announcement that the President has not given her
consent. It is woefully insufficient for Congress to determine whether the withholding of information is
justified under the circumstances of each case. It severely frustrates the power of inquiry of
Congress.

In fine, Section 3 and Section 2(b) of E.O. 464 must be invalidated.

No infirmity, however, can be imputed to Section 2(a) as it merely provides guidelines, binding only
on the heads of office mentioned in Section 2(b), on what is covered by executive privilege. It does
not purport to be conclusive on the other branches of government. It may thus be construed as a
mere expression of opinion by the President regarding the nature and scope of executive privilege.

Petitioners, however, assert as another ground for invalidating the challenged order the alleged
unlawful delegation of authority to the heads of offices in Section 2(b). Petitioner Senate of the
Philippines, in particular, cites the case of the United States where, so it claims, only the President
can assert executive privilege to withhold information from Congress.

Section 2(b) in relation to Section 3 virtually provides that, once the head of office determines that a
certain information is privileged, such determination is presumed to bear the Presidents authority
and has the effect of prohibiting the official from appearing before Congress, subject only to the
express pronouncement of the President that it is allowing the appearance of such official. These
provisions thus allow the President to authorize claims of privilege by mere silence.

Such presumptive authorization, however, is contrary to the exceptional nature of the privilege.
Executive privilege, as already discussed, is recognized with respect to information the confidential
nature of which is crucial to the fulfillment of the unique role and responsibilities of the executive
branch,105 or in those instances where exemption from disclosure is necessary to the discharge of
highly important executive responsibilities.106 The doctrine of executive privilege is thus premised on
the fact that certain informations must, as a matter of necessity, be kept confidential in pursuit of the
public interest. The privilege being, by definition, an exemption from the obligation to disclose
information, in this case to Congress, the necessity must be of such high degree as to outweigh the
public interest in enforcing that obligation in a particular case.

In light of this highly exceptional nature of the privilege, the Court finds it essential to limit to the
President the power to invoke the privilege. She may of course authorize the Executive Secretary to
invoke the privilege on her behalf, in which case the Executive Secretary must state that the
authority is "By order of the President," which means that he personally consulted with her. The
privilege being an extraordinary power, it must be wielded only by the highest official in the executive
hierarchy. In other words, the President may not authorize her subordinates to exercise such power.
There is even less reason to uphold such authorization in the instant case where the authorization is
not explicit but by mere silence. Section 3, in relation to Section 2(b), is further invalid on this score.
It follows, therefore, that when an official is being summoned by Congress on a matter which, in his
own judgment, might be covered by executive privilege, he must be afforded reasonable time to
inform the President or the Executive Secretary of the possible need for invoking the privilege. This
is necessary in order to provide the President or the Executive Secretary with fair opportunity to
consider whether the matter indeed calls for a claim of executive privilege. If, after the lapse of that
reasonable time, neither the President nor the Executive Secretary invokes the privilege, Congress
is no longer bound to respect the failure of the official to appear before Congress and may then opt
to avail of the necessary legal means to compel his appearance.

The Court notes that one of the expressed purposes for requiring officials to secure the consent of
the President under Section 3 of E.O. 464 is to ensure "respect for the rights of public officials
appearing in inquiries in aid of legislation." That such rights must indeed be respected by Congress
is an echo from Article VI Section 21 of the Constitution mandating that "[t]he rights of persons
appearing in or affected by such inquiries shall be respected."

In light of the above discussion of Section 3, it is clear that it is essentially an authorization for
implied claims of executive privilege, for which reason it must be invalidated. That such authorization
is partly motivated by the need to ensure respect for such officials does not change the infirm nature
of the authorization itself.

Right to Information

E.O 464 is concerned only with the demands of Congress for the appearance of executive officials in
the hearings conducted by it, and not with the demands of citizens for information pursuant to their
right to information on matters of public concern. Petitioners are not amiss in claiming, however, that
what is involved in the present controversy is not merely the legislative power of inquiry, but the right
of the people to information.

There are, it bears noting, clear distinctions between the right of Congress to information which
underlies the power of inquiry and the right of the people to information on matters of public concern.
For one, the demand of a citizen for the production of documents pursuant to his right to information
does not have the same obligatory force as a subpoena duces tecum issued by Congress. Neither
does the right to information grant a citizen the power to exact testimony from government officials.
These powers belong only to Congress and not to an individual citizen.

Thus, while Congress is composed of representatives elected by the people, it does not follow,
except in a highly qualified sense, that in every exercise of its power of inquiry, the people are
exercising their right to information.

To the extent that investigations in aid of legislation are generally conducted in public, however, any
executive issuance tending to unduly limit disclosures of information in such investigations
necessarily deprives the people of information which, being presumed to be in aid of legislation, is
presumed to be a matter of public concern. The citizens are thereby denied access to information
which they can use in formulating their own opinions on the matter before Congress opinions
which they can then communicate to their representatives and other government officials through the
various legal means allowed by their freedom of expression. Thus holds Valmonte v. Belmonte:

It is in the interest of the State that the channels for free political discussion be maintained to the end
that the government may perceive and be responsive to the peoples will. Yet, this open dialogue
can be effective only to the extent that the citizenry is informed and thus able to formulate its will
intelligently. Only when the participants in the discussion are aware of the issues and have access to
information relating thereto can such bear fruit.107(Emphasis and underscoring supplied)
The impairment of the right of the people to information as a consequence of E.O. 464 is, therefore,
in the sense explained above, just as direct as its violation of the legislatures power of inquiry.

Implementation of E.O. 464 prior to its publication

While E.O. 464 applies only to officials of the executive branch, it does not follow that the same is
exempt from the need for publication. On the need for publishing even those statutes that do not
directly apply to people in general, Taada v. Tuvera states:

The term "laws" should refer to all laws and not only to those of general application, for strictly
speaking all laws relate to the people in general albeit there are some that do not apply to them
directly. An example is a law granting citizenship to a particular individual, like a relative of President
Marcos who was decreed instant naturalization. It surely cannot be said that such a law does not
affect the public although it unquestionably does not apply directly to all the people. The subject of
such law is a matter of public interest which any member of the body politic may question in the
political forums or, if he is a proper party, even in courts of justice.108 (Emphasis and underscoring
supplied)

Although the above statement was made in reference to statutes, logic dictates that the challenged
order must be covered by the publication requirement. As explained above, E.O. 464 has a direct
effect on the right of the people to information on matters of public concern. It is, therefore, a matter
of public interest which members of the body politic may question before this Court. Due process
thus requires that the people should have been apprised of this issuance before it was implemented.

Conclusion

Congress undoubtedly has a right to information from the executive branch whenever it is sought in
aid of legislation. If the executive branch withholds such information on the ground that it is
privileged, it must so assert it and state the reason therefor and why it must be respected.

The infirm provisions of E.O. 464, however, allow the executive branch to evade congressional
requests for information without need of clearly asserting a right to do so and/or proffering its
reasons therefor. By the mere expedient of invoking said provisions, the power of Congress to
conduct inquiries in aid of legislation is frustrated. That is impermissible. For

[w]hat republican theory did accomplishwas to reverse the old presumption in favor of secrecy,
based on the divine right of kings and nobles, and replace it with a presumption in favor of publicity,
based on the doctrine of popular sovereignty. (Underscoring supplied)109

Resort to any means then by which officials of the executive branch could refuse to divulge
information cannot be presumed valid. Otherwise, we shall not have merely nullified the power of our
legislature to inquire into the operations of government, but we shall have given up something of
much greater value our right as a people to take part in government.

WHEREFORE, the petitions are PARTLY GRANTED. Sections 2(b) and 3 of Executive Order No.
464 (series of 2005), "Ensuring Observance of the Principle of Separation of Powers, Adherence to
the Rule on Executive

Privilege and Respect for the Rights of Public Officials Appearing in Legislative Inquiries in Aid of
Legislation Under the Constitution, and For Other Purposes," are declared VOID. Sections 1 and
2(a) are, however, VALID.
SO ORDERED.

CONCHITA CARPIO MORALES


Associate Justice

WE CONCUR:

ARTEMIO V. PANGANIBAN
Chief Justice

(ON LEAVE)
REYNATO S. PUNO CONSUELO YNARES- SANTIAGO
Associate Justice Asscociate Justice

LEONARDO A. QUISUMBING ANGELINA SANDOVAL-GUTIERREZ


Associate Justice Asscociate Justice

ANTONIO T. CARPIO MA. ALICIA AUSTRIA-MARTINEZ


Associate Justice Asscociate Justice

RENATO C. CORONA ADOLFO S. AZCUNA


Associate Justice Asscociate Justice

ROMEO J. CALLEJO, SR. DANTE O. TINGA


Associate Justice Asscociate Justice

MINITA V. CHICO-NAZARIO CANCIO C. GARCIA


Associate Justice Asscociate Justice

PRESBITERO J. VELASCO, JR.


Associate Justice

CERTIFICATION

Pursuant to Article VIII, Section 13 of the Constitution, it is hereby certified that the conclusions in
the above Resolution were reached in consultation before the case was assigned to the writer of the
opinion of the Court.

ARTEMIO V. PANGANIBAN
Chief Justice
Footnotes

Tanada vs Angara
Justiciable Question; Theory of Auto-Limitation; Declaration of
Principles and State Policies

TANADA VS ANGARA
G.R. No. 118295 May 2, 1997

Wigberto E. Tanada et al, in representation of various taxpayers and as non-governmental


organizations, petitioners,
vs.
EDGARDO ANGARA, et al, respondents.

Facts:
This is a case petition by Sen. Wigberto Tanada, together with other lawmakers, taxpayers, and various NGOs
to nullify the Philippine ratification of the World Trade Organization (WTO) Agreement.

Petitioners believe that this will be detrimental to the growth of our National Economy and against to the
Filipino First policy. The WTO opens access to foreign markets, especially its major trading partners,
through the reduction of tariffs on its exports, particularly agricultural and industrial products. Thus, provides
new opportunities for the service sector cost and uncertainty associated with exporting and more investment in
the country. These are the predicted benefits as reflected in the agreement and as viewed by the signatory
Senators, a free market espoused by WTO.

Petitioners also contends that it is in conflict with the provisions of our constitution, since the said Agreement
is an assault on the sovereign powers of the Philippines because it meant that Congress could not pass
legislation that would be good for national interest and general welfare if such legislation would not conform
to the WTO Agreement.

Issues:

1. Whether or not the petition present a justiciable controversy.


2. Whether or not the provisions of the Agreement Establishing the World Trade Organization and the
Agreements and Associated Legal Instruments included in Annexes one (1), two (2) and three (3) of that
agreement cited by petitioners directly contravene or undermine the letter, spirit and intent of Section 19,
Article II and Sections 10 and 12, Article XII of the 1987 Constitution.
3. Whether or not certain provisions of the Agreement unduly limit, restrict or impair the exercise of
legislative power by Congress.
4. Whether or not certain provisions of the Agreement impair the exercise of judicial power by this
Honorable Court in promulgating the rules of evidence.
5. Whether or not the concurrence of the Senate in the ratification by the President of the Philippines of the
Agreement establishing the World Trade Organization implied rejection of the treaty embodied in the
Final Act.

Discussions:

1987 Constitution states that Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable, and to determine whether or
not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of
any branch or instrumentality of the government.
Although the Constitution mandates to develop a self-reliant and independent national economy controlled
by Filipinos, does not necessarily rule out the entry of foreign investments, goods and services. It
contemplates neither economic seclusion nor mendicancy in the international community. The WTO
itself has some built-in advantages to protect weak and developing economies, which comprise the vast
majority of its members. Unlike in the UN where major states have permanent seats and veto powers in
the Security Council, in the WTO, decisions are made on the basis of sovereign equality, with each
members vote equal in weight to that of any other. Hence, poor countries can protect their common
interests more effectively through the WTO than through one-on-one negotiations with developed
countries. Within the WTO, developing countries can form powerful blocs to push their economic agenda
more decisively than outside the Organization. Which is not merely a matter of practical alliances but a
negotiating strategy rooted in law. Thus, the basic principles underlying the WTO Agreement recognize
the need of developing countries like the Philippines to share in the growth in international trade
commensurate with the needs of their economic development.
In its Declaration of Principles and State Policies, the Constitution adopts the generally accepted
principles of international law as part of the law of the land, and adheres to the policy of peace, equality,
justice, freedom, cooperation and amity, with all nations. By the doctrine of incorporation, the country is
bound by generally accepted principles of international law, which are considered to be automatically part
of our own laws. A state which has contracted valid international obligations is bound to make in its
legislations such modifications as may be necessary to ensure the fulfillment of the obligations
undertaken. Paragraph 1, Article 34 of the General Provisions and Basic Principles of the Agreement on
Trade-Related Aspects of Intellectual Property Rights (TRIPS) may intrudes on the power of the Supreme
Court to promulgate rules concerning pleading, practice and procedures. With regard to Infringement of a
design patent, WTO members shall be free to determine the appropriate method of implementing the
provisions of TRIPS within their own internal systems and processes.
The alleged impairment of sovereignty in the exercise of legislative and judicial powers is balanced by the
adoption of the generally accepted principles of international law as part of the law of the land and the
adherence of the Constitution to the policy of cooperation and amity with all nations. The Senate, after
deliberation and voting, voluntarily and overwhelmingly gave its consent to the WTO Agreement thereby
making it a part of the law of the land is a legitimate exercise of its sovereign duty and power.

Rulings:

1. In seeking to nullify an act of the Philippine Senate on the ground that it contravenes the Constitution, the
petition no doubt raises a justiciable controversy. Where 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. As explained by former Chief Justice Roberto Concepcion, the judiciary is the final
arbiter on the question of whether or not a branch of government or any of its officials has acted without
jurisdiction or in excess of jurisdiction or so capriciously as to constitute an abuse of discretion amounting
to excess of jurisdiction. This is not only a judicial power but a duty to pass judgment on matters of this
nature.
2. While the Constitution indeed mandates a bias in favor of Filipino goods, services, labor and enterprises,
at the same time, it recognizes the need for business exchange with the rest of the world on the bases of
equality and reciprocity and limits protection of Filipino enterprises only against foreign competition and
trade practices that are unfair. In other words, the Constitution did not intend to pursue an isolationist
policy. It did not shut out foreign investments, goods and services in the development of the Philippine
economy. While the Constitution does not encourage the unlimited entry of foreign goods, services and
investments into the country, it does not prohibit them either. In fact, it allows an exchange on the basis of
equality and reciprocity, frowning only on foreign competition that is unfair.
3. By their inherent nature, treaties really limit or restrict the absoluteness of sovereignty. By their voluntary
act, nations may surrender some aspects of their state power in exchange for greater benefits granted by or
derived from a convention or pact. After all, states, like individuals, live with coequals, and in pursuit of
mutually covenanted objectives and benefits, they also commonly agree to limit the exercise of their
otherwise absolute rights. As shown by the foregoing treaties Philippines has entered, a portion of
sovereignty may be waived without violating the Constitution, based on the rationale that the Philippines
adopts the generally accepted principles of international law as part of the law of the land and adheres to
the policy of cooperation and amity with all nations.
4. The provision in Article 34 of WTO agreement does not contain an unreasonable burden, consistent as it is
with due process and the concept of adversarial dispute settlement inherent in our judicial system.
5. The assailed Senate Resolution No. 97 expressed concurrence in exactly what the Final Act required from
its signatories, namely, concurrence of the Senate in the WTO Agreement. Moreover, the Senate was well-
aware of what it was concurring in as shown by the members deliberation on August 25, 1994. After
reading the letter of President Ramos dated August 11, 1994, the senators of the Republic minutely
dissected what the Senate was concurring in.

1.6. EN BANC
2.7. [G.R. No. 118295. May 2, 1997]
3.8. WIGBERTO E. TAADA and ANNA DOMINIQUE COSETENG,
as members of the Philippine Senate and as taxpayers;
GREGORIO ANDOLANA and JOKER ARROYO as members of
the House of Representatives and as taxpayers; NICANOR P.
PERLAS and HORACIO R. MORALES, both as taxpayers; CIVIL
LIBERTIES UNION, NATIONAL ECONOMIC PROTECTIONISM
ASSOCIATION, CENTER FOR ALTERNATIVE DEVELOPMENT
INITIATIVES, LIKAS-KAYANG KAUNLARAN FOUNDATION, INC.,
PHILIPPINE RURAL RECONSTRUCTION MOVEMENT,
DEMOKRATIKONG KILUSAN NG MAGBUBUKID NG PILIPINAS,
INC., and PHILIPPINE PEASANT INSTITUTE, in representation of
various taxpayers and as non-governmental
organizations, petitioners, vs.EDGARDO ANGARA, ALBERTO
ROMULO, LETICIA RAMOS-SHAHANI, HEHERSON ALVAREZ,
AGAPITO AQUINO, RODOLFO BIAZON, NEPTALI GONZALES,
ERNESTO HERRERA, JOSE LINA, GLORIA MACAPAGAL-
ARROYO, ORLANDO MERCADO, BLAS OPLE, JOHN OSMEA,
SANTANINA RASUL, RAMON REVILLA, RAUL ROCO,
FRANCISCO TATAD and FREDDIE WEBB, in their respective
capacities as members of the Philippine Senate who concurred
in the ratification by the President of the Philippines of the
Agreement Establishing the World Trade Organization;
SALVADOR ENRIQUEZ, in his capacity as Secretary of Budget
and Management; CARIDAD VALDEHUESA, in her capacity as
National Treasurer; RIZALINO NAVARRO, in his capacity as
Secretary of Trade and Industry; ROBERTO SEBASTIAN, in his
capacity as Secretary of Agriculture; ROBERTO DE OCAMPO, in
his capacity as Secretary of Finance; ROBERTO ROMULO, in his
capacity as Secretary of Foreign Affairs; and TEOFISTO T.
GUINGONA, in his capacity as Executive
Secretary, respondents.
4.9. DECISION
5.10. PANGANIBAN, J.:
6.11. The emergence on January 1, 1995 of the World Trade Organization,
abetted by the membership thereto of the vast majority of countries has
revolutionized international business and economic relations amongst states. It
has irreversibly propelled the world towards trade liberalization and economic
globalization. Liberalization, globalization, deregulation and privatization, the
third-millennium buzz words, are ushering in a new borderless world of business
by sweeping away as mere historical relics the heretofore traditional modes of
promoting and protecting national economies like tariffs, export subsidies, import
quotas, quantitative restrictions, tax exemptions and currency controls. Finding
market niches and becoming the best in specific industries in a market-driven
and export-oriented global scenario are replacing age-old beggar-thy-neighbor
policies that unilaterally protect weak and inefficient domestic producers of goods
and services. In the words of Peter Drucker, the well-known management guru,
Increased participation in the world economy has become the key to domestic
economic growth and prosperity.
7.12. Brief Historical Background
8.13. To hasten worldwide recovery from the devastation wrought by the
Second World War, plans for the establishment of three multilateral institutions --
inspired by that grand political body, the United Nations -- were discussed at
Dumbarton Oaks and Bretton Woods. The first was the World Bank (WB) which
was to address the rehabilitation and reconstruction of war-ravaged and later
developing countries; the second, the International Monetary Fund (IMF) which
was to deal with currency problems; and the third, the International Trade
Organization (ITO), which was to foster order and predictability in world trade and
to minimize unilateral protectionist policies that invite challenge, even retaliation,
from other states. However, for a variety of reasons, including its non-ratification
by the United States, the ITO, unlike the IMF and WB, never took off. What
remained was only GATT -- the General Agreement on Tariffs and Trade. GATT
was a collection of treaties governing access to the economies of treaty
adherents with no institutionalized body administering the agreements or
dependable system of dispute settlement.
9.14. After half a century and several dizzying rounds of negotiations, principally
the Kennedy Round, the Tokyo Round and the Uruguay Round, the world finally
gave birth to that administering body -- the World Trade Organization -- with the
signing of the Final Act in Marrakesh, Morocco and the ratification of the WTO
Agreement by its members.[1]
10.15. Like many other developing countries, the Philippines joined WTO as a
founding member with the goal, as articulated by President Fidel V. Ramos in
two letters to the Senate (infra), of improving Philippine access to foreign
markets, especially its major trading partners, through the reduction of tariffs on
its exports, particularly agricultural and industrial products. The President also
saw in the WTO the opening of new opportunities for the services sector x x x,
(the reduction of) costs and uncertainty associated with exporting x x x, and (the
attraction of) more investments into the country. Although the Chief Executive did
not expressly mention it in his letter, the Philippines - - and this is of special
interest to the legal profession - - will benefit from the WTO system of dispute
settlement by judicial adjudication through the independent WTO settlement
bodies called (1) Dispute Settlement Panels and (2) Appellate
Tribunal. Heretofore, trade disputes were settled mainly through negotiations
where solutions were arrived at frequently on the basis of relative bargaining
strengths, and where naturally, weak and underdeveloped countries were at a
disadvantage.
11.16. The Petition in Brief
12.17. Arguing mainly (1) that the WTO requires the Philippines to place
nationals and products of member-countries on the same footing as Filipinos and
local products and (2) that the WTO intrudes, limits and/or impairs the
constitutional powers of both Congress and the Supreme Court, the instant
petition before this Court assails the WTO Agreement for violating the mandate
of the 1987 Constitution to develop a self-reliant and independent national
economy effectively controlled by Filipinos x x x (to) give preference to qualified
Filipinos (and to) promote the preferential use of Filipino labor, domestic
materials and locally produced goods.
13.18. Simply stated, does the Philippine Constitution prohibit Philippine
participation in worldwide trade liberalization and economic globalization? Does it
prescribe Philippine integration into a global economy that is liberalized,
deregulated and privatized? These are the main questions raised in this petition
for certiorari, prohibition and mandamus under Rule 65 of the Rules of Court
praying (1) for the nullification, on constitutional grounds, of the concurrence of
the Philippine Senate in the ratification by the President of the Philippines of the
Agreement Establishing the World Trade Organization (WTO Agreement, for
brevity) and (2) for the prohibition of its implementation and enforcement through
the release and utilization of public funds, the assignment of public officials and
employees, as well as the use of government properties and resources by
respondent-heads of various executive offices concerned therewith. This
concurrence is embodied in Senate Resolution No. 97, dated December 14,
1994.
14.19. The Facts
15.20. On April 15, 1994, Respondent Rizalino Navarro, then Secretary of
the Department of Trade and Industry (Secretary Navarro, for brevity),
representing the Government of the Republic of the Philippines, signed in
Marrakesh, Morocco, the Final Act Embodying the Results of the Uruguay Round
of Multilateral Negotiations (Final Act, for brevity).
16.21. By signing the Final Act,[2] Secretary Navarro on behalf of the Republic of
the Philippines, agreed:
17.22. (a) to submit, as appropriate, the WTO Agreement for the consideration
of their respective competent authorities, with a view to seeking approval of the
Agreement in accordance with their procedures; and
18.23. (b) to adopt the Ministerial Declarations and Decisions.
19.24. On August 12, 1994, the members of the Philippine Senate received a
letter dated August 11, 1994 from the President of the Philippines, [3] stating
among others that the Uruguay Round Final Act is hereby submitted to the
Senate for its concurrence pursuant to Section 21, Article VII of the Constitution.
20.25. On August 13, 1994, the members of the Philippine Senate received
another letter from the President of the Philippines[4]likewise dated August 11,
1994, which stated among others that the Uruguay Round Final Act, the
Agreement Establishing the World Trade Organization, the Ministerial
Declarations and Decisions, and the Understanding on Commitments in Financial
Services are hereby submitted to the Senate for its concurrence pursuant to
Section 21, Article VII of the Constitution.
21.26. On December 9, 1994, the President of the Philippines certified the
necessity of the immediate adoption of P.S. 1083, a resolution entitled
Concurring in the Ratification of the Agreement Establishing the World Trade
Organization.[5]
22.27. On December 14, 1994, the Philippine Senate adopted Resolution No. 97
which Resolved, as it is hereby resolved, that the Senate concur, as it hereby
concurs, in the ratification by the President of the Philippines of the Agreement
Establishing the World Trade Organization.[6] The text of the WTO Agreement is
written on pages 137 et seq. of Volume I of the 36-volume Uruguay Round of
Multilateral Trade Negotiations and includes various agreements and associated
legal instruments (identified in the said Agreement as Annexes 1, 2 and 3 thereto
and collectively referred to as Multilateral Trade Agreements, for brevity) as
follows:
23.28. ANNEX 1
24.29. Annex 1A: Multilateral Agreement on Trade in Goods
25.30. General Agreement on Tariffs and Trade 1994
26.31. Agreement on Agriculture
27.32. Agreement on the Application of Sanitary and
28.33. Phytosanitary Measures
29.34. Agreement on Textiles and Clothing
30.35. Agreement on Technical Barriers to Trade
31.36. Agreement on Trade-Related Investment Measures
32.37. Agreement on Implementation of Article VI of the General Agreement
on Tariffs and Trade 1994
33.38. Agreement on Implementation of Article VII of the General on Tariffs
and Trade 1994
34.39. Agreement on Pre-Shipment Inspection
35.40. Agreement on Rules of Origin
36.41. Agreement on Imports Licensing Procedures
37.42. Agreement on Subsidies and Coordinating Measures
38.43. Agreement on Safeguards
39.44. Annex 1B: General Agreement on Trade in Services and Annexes
40.45. Annex 1C: Agreement on Trade-Related Aspects of Intellectual Property
Rights
41.46. ANNEX 2
42.47. Understanding on Rules and Procedures Governing the Settlement of
Disputes
43.48. ANNEX 3
44.49. Trade Policy Review Mechanism
45.50. On December 16, 1994, the President of the Philippines signed [7] the
Instrument of Ratification, declaring:
46.51. NOW THEREFORE, be it known that I, FIDEL V. RAMOS, President
of the Republic of the Philippines, after having seen and considered the
aforementioned Agreement Establishing the World Trade Organization and the
agreements and associated legal instruments included in Annexes one (1), two
(2) and three (3) of that Agreement which are integral parts thereof, signed at
Marrakesh, Morocco on 15 April 1994, do hereby ratify and confirm the same
and every Article and Clause thereof.
47.52. To emphasize, the WTO Agreement ratified by the President of the
Philippines is composed of the Agreement Proper and the associated legal
instruments included in Annexes one (1), two (2) and three (3) of that Agreement
which are integral parts thereof.
48.53. On the other hand, the Final Act signed by Secretary Navarro embodies
not only the WTO Agreement (and its integral annexes aforementioned) but also
(1) the Ministerial Declarations and Decisions and (2) the Understanding on
Commitments in Financial Services. In his Memorandum dated May 13,
1996,[8] the Solicitor General describes these two latter documents as follows:
49.54. The Ministerial Decisions and Declarations are twenty-five declarations
and decisions on a wide range of matters, such as measures in favor of least
developed countries, notification procedures, relationship of WTO with the
International Monetary Fund (IMF), and agreements on technical barriers to
trade and on dispute settlement.
50.55. The Understanding on Commitments in Financial Services dwell on,
among other things, standstill or limitations and qualifications of commitments
to existing non-conforming measures, market access, national treatment, and
definitions of non-resident supplier of financial services, commercial presence
and new financial service.
51.56. On December 29, 1994, the present petition was filed. After careful
deliberation on respondents comment and petitioners reply thereto, the Court
resolved on December 12, 1995, to give due course to the petition, and the
parties thereafter filed their respective memoranda. The Court also requested the
Honorable Lilia R. Bautista, the Philippine Ambassador to the United Nations
stationed in Geneva, Switzerland, to submit a paper, hereafter referred to as
Bautista Paper,[9] for brevity, (1) providing a historical background of and (2)
summarizing the said agreements.
52.57. During the Oral Argument held on August 27, 1996, the Court directed:
53.58. (a) the petitioners to submit the (1) Senate Committee Report on the
matter in controversy and (2) the transcript of proceedings/hearings in the
Senate; and
54.59. (b) the Solicitor General, as counsel for respondents, to file (1) a list of
Philippine treaties signed prior to the Philippine adherence to the WTO
Agreement, which derogate from Philippine sovereignty and (2) copies of the
multi-volume WTO Agreement and other documents mentioned in the Final
Act, as soon as possible.
55.60. After receipt of the foregoing documents, the Court said it would consider
the case submitted for resolution. In a Compliance dated September 16, 1996,
the Solicitor General submitted a printed copy of the 36-volume Uruguay Round
of Multilateral Trade Negotiations, and in another Compliance dated October 24,
1996, he listed the various bilateral or multilateral treaties or international
instruments involving derogation of Philippine sovereignty. Petitioners, on the
other hand, submitted their Compliance dated January 28, 1997, on January 30,
1997.
56.61. The Issues
57.62. In their Memorandum dated March 11, 1996, petitioners summarized the
issues as follows:
58.63. A. Whether the petition presents a political question or is otherwise not
justiciable.
59.64. B. Whether the petitioner members of the Senate who participated in the
deliberations and voting leading to the concurrence are estopped from
impugning the validity of the Agreement Establishing the World Trade
Organization or of the validity of the concurrence.
60.65. C. Whether the provisions of the Agreement Establishing the World
Trade Organization contravene the provisions of Sec. 19, Article II, and Secs.
10 and 12, Article XII, all of the 1987 Philippine Constitution.
61.66. D. Whether provisions of the Agreement Establishing the World Trade
Organization unduly limit, restrict and impair Philippine sovereignty
specifically the legislative power which, under Sec. 2, Article VI, 1987
Philippine Constitution is vested in the Congress of the Philippines;
62.67. E. Whether provisions of the Agreement Establishing the World Trade
Organization interfere with the exercise of judicial power.
63.68. F. Whether the respondent members of the Senate acted in grave abuse
of discretion amounting to lack or excess of jurisdiction when they voted for
concurrence in the ratification of the constitutionally-infirm Agreement
Establishing the World Trade Organization.
64.69. G. Whether the respondent members of the Senate acted in grave abuse
of discretion amounting to lack or excess of jurisdiction when they concurred
only in the ratification of the Agreement Establishing the World Trade
Organization, and not with the Presidential submission which included the
Final Act, Ministerial Declaration and Decisions, and the Understanding on
Commitments in Financial Services.
65.70. On the other hand, the Solicitor General as counsel for respondents
synthesized the several issues raised by petitioners into the following: [10]
66.71. 1. Whether or not the provisions of the Agreement Establishing the
World Trade Organization and the Agreements and Associated Legal
Instruments included in Annexes one (1), two (2) and three (3) of that
agreement cited by petitioners directly contravene or undermine the letter, spirit
and intent of Section 19, Article II and Sections 10 and 12, Article XII of the
1987 Constitution.
67.72. 2. Whether or not certain provisions of the Agreement unduly limit,
restrict or impair the exercise of legislative power by Congress.
68.73. 3. Whether or not certain provisions of the Agreement impair the
exercise of judicial power by this Honorable Court in promulgating the rules of
evidence.
69.74. 4. Whether or not the concurrence of the Senate in the ratification by the
President of the Philippines of the Agreement establishing the World Trade
Organization implied rejection of the treaty embodied in the Final Act.
70.75. By raising and arguing only four issues against the seven presented by
petitioners, the Solicitor General has effectively ignored three, namely: (1)
whether the petition presents a political question or is otherwise not justiciable;
(2) whether petitioner-members of the Senate (Wigberto E. Taada and Anna
Dominique Coseteng) are estopped from joining this suit; and (3) whether the
respondent-members of the Senate acted in grave abuse of discretion when they
voted for concurrence in the ratification of the WTO Agreement. The foregoing
notwithstanding, this Court resolved to deal with these three issues thus:
71.76. (1) The political question issue -- being very fundamental and vital, and
being a matter that probes into the very jurisdiction of this Court to hear and
decide this case -- was deliberated upon by the Court and will thus be ruled
upon as the first issue;
72.77. (2) The matter of estoppel will not be taken up because this defense is
waivable and the respondents have effectively waived it by not pursuing it in
any of their pleadings; in any event, this issue, even if ruled in respondents
favor, will not cause the petitions dismissal as there are petitioners other than
the two senators, who are not vulnerable to the defense of estoppel; and
73.78. (3) The issue of alleged grave abuse of discretion on the part of the
respondent senators will be taken up as an integral part of the disposition of the
four issues raised by the Solicitor General.
74.79. During its deliberations on the case, the Court noted that the respondents
did not question the locus standi of petitioners.Hence, they are also deemed to
have waived the benefit of such issue. They probably realized that grave
constitutional issues, expenditures of public funds and serious international
commitments of the nation are involved here, and that transcendental public
interest requires that the substantive issues be met head on and decided on the
merits, rather than skirted or deflected by procedural matters.[11]
75.80. To recapitulate, the issues that will be ruled upon shortly are:
76.81. (1) DOES THE PETITION PRESENT A JUSTICIABLE
CONTROVERSY? OTHERWISE STATED, DOES THE PETITION INVOLVE A
POLITICAL QUESTION OVER WHICH THIS COURT HAS NO JURISDICTION?
77.82. (2) DO THE PROVISIONS OF THE WTO AGREEMENT AND ITS THREE
ANNEXES CONTRAVENE SEC. 19, ARTICLE II, AND SECS. 10 AND 12,
ARTICLE XII, OF THE PHILIPPINE CONSTITUTION?
78.83. (3) DO THE PROVISIONS OF SAID AGREEMENT AND ITS ANNEXES
LIMIT, RESTRICT, OR IMPAIR THE EXERCISE OF LEGISLATIVE POWER BY
CONGRESS?
79.84. (4) DO SAID PROVISIONS UNDULY IMPAIR OR INTERFERE WITH THE
EXERCISE OF JUDICIAL POWER BY THIS COURT IN PROMULGATING RULES
ON EVIDENCE?
80.85. (5) WAS THE CONCURRENCE OF THE SENATE IN THE WTO
AGREEMENT AND ITS ANNEXES SUFFICIENT AND/OR VALID, CONSIDERING
THAT IT DID NOT INCLUDE THE FINAL ACT, MINISTERIAL DECLARATIONS
AND DECISIONS, AND THE UNDERSTANDING ON COMMITMENTS IN
FINANCIAL SERVICES?
81.86. The First Issue: Does the Court Have Jurisdiction Over the
Controversy?
82.87. In seeking to nullify an act of the Philippine Senate on the ground that it
contravenes the Constitution, the petition no doubt raises a justiciable
controversy. Where 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. The question thus posed is judicial rather
than political. The duty (to adjudicate) remains to assure that the supremacy of
the Constitution is upheld.[12] Once a controversy as to the application or
interpretation of a constitutional provision is raised before this Court (as in the
instant case), it becomes a legal issue which the Court is bound by constitutional
mandate to decide.[13]
83.88. The jurisdiction of this Court to adjudicate the matters[14] raised in the
petition is clearly set out in the 1987 Constitution,[15]as follows:
84.89. Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable,
and to determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the government.
85.90. The foregoing text emphasizes the judicial departments duty and power to
strike down grave abuse of discretion on the part of any branch or instrumentality
of government including Congress. It is an innovation in our political law.[16] As
explained by former Chief Justice Roberto Concepcion,[17] the judiciary is the final
arbiter on the question of whether or not a branch of government or any of its
officials has acted without jurisdiction or in excess of jurisdiction or so
capriciously as to constitute an abuse of discretion amounting to excess of
jurisdiction. This is not only a judicial power but a duty to pass judgment on
matters of this nature.
86.91. As this Court has repeatedly and firmly emphasized in many cases, [18] it will
not shirk, digress from or abandon its sacred duty and authority to uphold the
Constitution in matters that involve grave abuse of discretion brought before it in
appropriate cases, committed by any officer, agency, instrumentality or
department of the government.
87.92. As the petition alleges grave abuse of discretion and as there is no other
plain, speedy or adequate remedy in the ordinary course of law, we have no
hesitation at all in holding that this petition should be given due course and the
vital questions raised therein ruled upon under Rule 65 of the Rules of
Court. Indeed, certiorari, prohibition and mandamus are appropriate remedies to
raise constitutional issues and to review and/or prohibit/nullify, when proper, acts
of legislative and executive officials. On this, we have no equivocation.
88.93. We should stress that, in deciding to take jurisdiction over this petition, this
Court will not review the wisdom of the decision of the President and the Senate
in enlisting the country into the WTO, or pass upon the merits of trade
liberalization as a policy espoused by said international body. Neither will it rule
on the propriety of the governments economic policy of reducing/removing tariffs,
taxes, subsidies, quantitative restrictions, and other import/trade barriers. Rather,
it will only exercise its constitutional duty to determine whether or not there had
been a grave abuse of discretion amounting to lack or excess of jurisdiction on
the part of the Senate in ratifying the WTO Agreement and its three annexes.
89.94. Second Issue: The WTO Agreement and Economic Nationalism
90.95. This is the lis mota, the main issue, raised by the petition.
91.96. Petitioners vigorously argue that the letter, spirit and intent of the
Constitution mandating economic nationalism are violated by the so-called parity
provisions and national treatment clauses scattered in various parts not only of
the WTO Agreement and its annexes but also in the Ministerial Decisions and
Declarations and in the Understanding on Commitments in Financial Services.
92.97. Specifically, the flagship constitutional provisions referred to are Sec. 19,
Article II, and Secs. 10 and 12, Article XII, of the Constitution, which are worded
as follows:
93.98. Article II
94.99. DECLARATION OF PRINCIPLES AND STATE POLICIES
95.100. xx xx xx xx
96.101. Sec. 19. The State shall develop a self-reliant and independent national
economy effectively controlled by Filipinos.
97.102. xx xx xx xx
98.103. Article XII
99.104. NATIONAL ECONOMY AND PATRIMONY
100.105. xx xx xx xx
101.106. Sec. 10. x x x. The Congress shall enact measures that will encourage the
formation and operation of enterprises whose capital is wholly owned by
Filipinos.
102.107. In the grant of rights, privileges, and concessions covering the national
economy and patrimony, the State shall give preference to qualified Filipinos.
103.108. xx xx xx xx
104.109. Sec. 12. The State shall promote the preferential use of Filipino labor,
domestic materials and locally produced goods, and adopt measures that help
make them competitive.
105.110. Petitioners aver that these sacred constitutional principles are desecrated
by the following WTO provisions quoted in their memorandum:[19]
106.111. a) In the area of investment measures related to trade in goods
(TRIMS, for brevity):
107.112. Article 2
108.113. National Treatment and Quantitative Restrictions.
109.114. 1. Without prejudice to other rights and obligations under GATT
1994. no Member shall apply any TRIM that is inconsistent with the provisions
of Article III or Article XI of GATT 1994.
110.115. 2. An Illustrative list of TRIMS that are inconsistent with the obligations
of general elimination of quantitative restrictions provided for in paragraph I of
Article XI of GATT 1994 is contained in the Annex to this
Agreement. (Agreement on Trade-Related Investment Measures, Vol. 27,
Uruguay Round, Legal Instruments, p.22121, emphasis supplied).
111.116. The Annex referred to reads as follows:
112.117. ANNEX
113.118. Illustrative List
114.119. 1. TRIMS that are inconsistent with the obligation of national
treatment provided for in paragraph 4 of Article III of GATT 1994 include
those which are mandatory or enforceable under domestic law or under
administrative rulings, or compliance with which is necessary to obtain an
advantage, and which require:
115.120. (a) the purchase or use by an enterprise of products of domestic origin or
from any domestic source, whether specified in terms of particular products, in
terms of volume or value of products, or in terms of proportion of volume or
value of its local production; or
116.121. (b) that an enterprises purchases or use of imported products be limited
to an amount related to the volume or value of local products that it exports.
117.122. 2. TRIMS that are inconsistent with the obligations of general
elimination of quantitative restrictions provided for in paragraph 1 of Article XI
of GATT 1994 include those which are mandatory or enforceable under
domestic laws or under administrative rulings, or compliance with which is
necessary to obtain an advantage, and which restrict:
118.123. (a) the importation by an enterprise of products used in or related to the
local production that it exports;
119.124. (b) the importation by an enterprise of products used in or related to its
local production by restricting its access to foreign exchange inflows
attributable to the enterprise; or
120.125. (c) the exportation or sale for export specified in terms of particular
products, in terms of volume or value of products, or in terms of a preparation
of volume or value of its local production. (Annex to the Agreement on Trade-
Related Investment Measures, Vol. 27, Uruguay Round Legal Documents,
p.22125, emphasis supplied).
121.126. The paragraph 4 of Article III of GATT 1994 referred to is quoted as
follows:
122.127. The products of the territory of any contracting party imported into the
territory of any other contracting party shall be accorded treatment no less
favorable than that accorded to like products of national origin in respect
of laws, regulations and requirements affecting their internal sale, offering for
sale, purchase, transportation, distribution or use. the provisions of this
paragraph shall not prevent the application of differential internal transportation
charges which are based exclusively on the economic operation of the means of
transport and not on the nationality of the product. (Article III, GATT 1947, as
amended by the Protocol Modifying Part II, and Article XXVI of GATT, 14
September 1948, 62 UMTS 82-84 in relation to paragraph 1(a) of the General
Agreement on Tariffs and Trade 1994, Vol. 1, Uruguay Round, Legal
Instruments p.177, emphasis supplied).
123.128. b) In the area of trade related aspects of intellectual property rights
(TRIPS, for brevity):
124.129. Each Member shall accord to the nationals of other Members
treatment no less favourable than that it accords to its own nationalswith
regard to the protection of intellectual property... (par. 1, Article 3, Agreement
on Trade-Related Aspect of Intellectual Property rights, Vol. 31, Uruguay
Round, Legal Instruments, p.25432 (emphasis supplied)
125.130. (c) In the area of the General Agreement on Trade in Services:
126.131. National Treatment
127.132. 1. In the sectors inscribed in its schedule, and subject to any conditions
and qualifications set out therein, each Member shall accord to services and
service suppliers of any other Member, in respect of all measures affecting the
supply of services, treatment no less favourable than it accords to its own
like services and service suppliers.
128.133. 2. A Member may meet the requirement of paragraph I by according to
services and service suppliers of any other Member, either formally identical
treatment or formally different treatment to that it accords to its own like
services and service suppliers.
129.134. 3. Formally identical or formally different treatment shall be considered
to be less favourable if it modifies the conditions of completion in favour of
services or service suppliers of the Member compared to like services or
service suppliers of any other Member. (Article XVII, General Agreement on
Trade in Services, Vol. 28, Uruguay Round Legal Instruments, p.22610
emphasis supplied).
130.135. It is petitioners position that the foregoing national treatment and parity
provisions of the WTO Agreement place nationals and products of member
countries on the same footing as Filipinos and local products, in contravention of
the Filipino Firstpolicy of the Constitution. They allegedly render meaningless the
phrase effectively controlled by Filipinos. The constitutional conflict becomes
more manifest when viewed in the context of the clear duty imposed on the
Philippines as a WTO member to ensure the conformity of its laws, regulations
and administrative procedures with its obligations as provided in the annexed
agreements.[20] Petitioners further argue that these provisions contravene
constitutional limitations on the role exports play in national development and
negate the preferential treatment accorded to Filipino labor, domestic materials
and locally produced goods.
131.136. On the other hand, respondents through the Solicitor General counter (1)
that such Charter provisions are not self-executing and merely set out general
policies; (2) that these nationalistic portions of the Constitution invoked by
petitioners should not be read in isolation but should be related to other relevant
provisions of Art. XII, particularly Secs. 1 and 13 thereof; (3) that read properly,
the cited WTO clauses do not conflict with the Constitution; and (4) that the WTO
Agreement contains sufficient provisions to protect developing countries like the
Philippines from the harshness of sudden trade liberalization.
132.137. We shall now discuss and rule on these arguments.
133.138. Declaration of Principles Not Self-Executing
134.139. By its very title, Article II of the Constitution is a declaration of principles
and state policies. The counterpart of this article in the 1935 Constitution[21] is
called the basic political creed of the nation by Dean Vicente Sinco.[22] These
principles in Article II are not intended to be self-executing principles ready for
enforcement through the courts.[23] They are used by the judiciary as aids or as
guides in the exercise of its power of judicial review, and by the legislature in its
enactment of laws. As held in the leading case of Kilosbayan, Incorporated vs.
Morato,[24] the principles and state policies enumerated in Article II and some
sections of Article XII are not self-executing provisions, the disregard of which
can give rise to a cause of action in the courts.They do not embody judicially
enforceable constitutional rights but guidelines for legislation.
135.140. In the same light, we held in Basco vs. Pagcor[25] that broad constitutional
principles need legislative enactments to implement them, thus:
136.141. On petitioners allegation that P.D. 1869 violates Sections 11 (Personal
Dignity) 12 (Family) and 13 (Role of Youth) of Article II; Section 13 (Social
Justice) of Article XIII and Section 2 (Educational Values) of Article XIV of
the 1987 Constitution, suffice it to state also that these are merely statements of
principles and policies. As such, they are basically not self-executing, meaning
a law should be passed by Congress to clearly define and effectuate such
principles.
137.142. In general, therefore, the 1935 provisions were not intended to be self-
executing principles ready for enforcement through the courts. They were
rather directives addressed to the executive and to the legislature. If the
executive and the legislature failed to heed the directives of the article, the
available remedy was not judicial but political. The electorate could express
their displeasure with the failure of the executive and the legislature through the
language of the ballot. (Bernas, Vol. II, p. 2).
138.143. The reasons for denying a cause of action to an alleged infringement of
broad constitutional principles are sourced from basic considerations of due
process and the lack of judicial authority to wade into the uncharted ocean of
social and economic policy making. Mr. Justice Florentino P. Feliciano in his
concurring opinion in Oposa vs. Factoran, Jr.,[26] explained these reasons as
follows:
139.144. My suggestion is simply that petitioners must, before the trial court,
show a more specific legal right -- a right cast in language of a significantly
lower order of generality than Article II (15) of the Constitution -- that is or
may be violated by the actions, or failures to act, imputed to the public
respondent by petitioners so that the trial court can validly render judgment
granting all or part of the relief prayed for.To my mind, the court should be
understood as simply saying that such a more specific legal right or rights may
well exist in our corpus of law, considering the general policy principles found
in the Constitution and the existence of the Philippine Environment Code, and
that the trial court should have given petitioners an effective opportunity so to
demonstrate, instead of aborting the proceedings on a motion to dismiss.
140.145. It seems to me important that the legal right which is an essential
component of a cause of action be a specific, operable legal right, rather than a
constitutional or statutory policy, for at least two (2) reasons. One is that unless
the legal right claimed to have been violated or disregarded is given
specification in operational terms, defendants may well be unable to defend
themselves intelligently and effectively; in other words, there are due process
dimensions to this matter.
141.146. The second is a broader-gauge consideration -- where a specific violation
of law or applicable regulation is not alleged or proved, petitioners can be
expected to fall back on the expanded conception of judicial power in the
second paragraph of Section 1 of Article VIII of the Constitution which reads:
142.147. Section 1. x x x
143.148. Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable,
and to determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government. (Emphases supplied)
144.149. When substantive standards as general as the right to a balanced and
healthy ecology and the right to health are combined with remedial standards as
broad ranging as a grave abuse of discretion amounting to lack or excess of
jurisdiction, the result will be, it is respectfully submitted, to propel courts into
the uncharted ocean of social and economic policy making. At least in respect
of the vast area of environmental protection and management, our courts have
no claim to special technical competence and experience and professional
qualification. Where no specific, operable norms and standards are shown to
exist, then the policy making departments -- the legislative and executive
departments -- must be given a real and effective opportunity to fashion and
promulgate those norms and standards, and to implement them before the
courts should intervene.
145.150. Economic Nationalism Should Be Read with Other Constitutional
Mandates to Attain Balanced Development of Economy
146.151. On the other hand, Secs. 10 and 12 of Article XII, apart from merely laying
down general principles relating to the national economy and patrimony, should
be read and understood in relation to the other sections in said article, especially
Secs. 1 and 13 thereof which read:
147.152. Section 1. The goals of the national economy are a more equitable
distribution of opportunities, income, and wealth; a sustained increase in the
amount of goods and services produced by the nation for the benefit of the
people; and an expanding productivity as the key to raising the quality of life
for all, especially the underprivileged.
148.153. The State shall promote industrialization and full employment based on
sound agricultural development and agrarian reform, through industries that
make full and efficient use of human and natural resources, and which are
competitive in both domestic and foreign markets.However, the State shall
protect Filipino enterprises against unfair foreign competition and trade
practices.
149.154. In the pursuit of these goals, all sectors of the economy and all regions of
the country shall be given optimum opportunity to develop. x x x
150.155. x x x x x x x x x
151.156. Sec. 13. The State shall pursue a trade policy that serves the general
welfare and utilizes all forms and arrangements of exchange on the basis of
equality and reciprocity.
152.157. As pointed out by the Solicitor General, Sec. 1 lays down the basic goals
of national economic development, as follows:
153.158. 1. A more equitable distribution of opportunities, income and wealth;
154.159. 2. A sustained increase in the amount of goods and services provided by
the nation for the benefit of the people; and
155.160. 3. An expanding productivity as the key to raising the quality of life for all
especially the underprivileged.
156.161. With these goals in context, the Constitution then ordains the ideals of
economic nationalism (1) by expressing preference in favor of qualified Filipinos
in the grant of rights, privileges and concessions covering the national economy
and patrimony[27]and in the use of Filipino labor, domestic materials and locally-
produced goods; (2) by mandating the State to adopt measures that help make
them competitive;[28] and (3) by requiring the State to develop a self-reliant and
independent national economy effectively controlled by Filipinos.[29] In similar
language, the Constitution takes into account the realities of the outside world as
it requires the pursuit of a trade policy that serves the general welfare and utilizes
all forms and arrangements of exchange on the basis of equality and
reciprocity;[30] and speaks of industries which are competitive in both domestic and
foreign markets as well as of the protection of Filipino enterprises against unfair
foreign competition and trade practices.
157.162. It is true that in the recent case of Manila Prince Hotel vs. Government
Service Insurance System, et al.,[31] this Court held that Sec. 10, second par., Art.
XII of the 1987 Constitution is a mandatory, positive command which is complete
in itself and which needs no further guidelines or implementing laws or rules for
its enforcement. From its very words the provision does not require any
legislation to put it in operation. It is per se judicially enforceable. However, as
the constitutional provision itself states, it is enforceable only in regard to the
grants of rights, privileges and concessions covering national economy and
patrimony and not to every aspect of trade and commerce. It refers to exceptions
rather than the rule. The issue here is not whether this paragraph of Sec. 10 of
Art. XII is self-executing or not. Rather, the issue is whether, as a rule, there are
enough balancing provisions in the Constitution to allow the Senate to ratify the
Philippine concurrence in the WTO Agreement. And we hold that there are.
158.163. All told, while the Constitution indeed mandates a bias in favor of Filipino
goods, services, labor and enterprises, at the same time, it recognizes the need
for business exchange with the rest of the world on the bases of equality and
reciprocity and limits protection of Filipino enterprises only against foreign
competition and trade practices that are unfair.[32] In other words, the Constitution
did not intend to pursue an isolationist policy. It did not shut out foreign
investments, goods and services in the development of the Philippine
economy. While the Constitution does not encourage the unlimited entry of
foreign goods, services and investments into the country, it does not prohibit
them either. In fact, it allows an exchange on the basis of equality and reciprocity,
frowning only on foreign competition that is unfair.
159.164. WTO Recognizes Need to Protect Weak Economies
160.165. Upon the other hand, respondents maintain that the WTO itself has some
built-in advantages to protect weak and developing economies, which comprise
the vast majority of its members. Unlike in the UN where major states have
permanent seats and veto powers in the Security Council, in the WTO, decisions
are made on the basis of sovereign equality, with each members vote equal in
weight to that of any other. There is no WTO equivalent of the UN Security
Council.
161.166. WTO decides by consensus whenever possible, otherwise, decisions of
the Ministerial Conference and the General Council shall be taken by the
majority of the votes cast, except in cases of interpretation of the Agreement or
waiver of the obligation of a member which would require three fourths
vote. Amendments would require two thirds vote in general. Amendments to
MFN provisions and the Amendments provision will require assent of all
members. Any member may withdraw from the Agreement upon the expiration
of six months from the date of notice of withdrawals. [33]

162.167. Hence, poor countries can protect their common interests more effectively
through the WTO than through one-on-one negotiations with developed
countries. Within the WTO, developing countries can form powerful blocs to push
their economic agenda more decisively than outside the Organization. This is not
merely a matter of practical alliances but a negotiating strategy rooted in
law. Thus, the basic principles underlying the WTO Agreement recognize the
need of developing countries like the Philippines to share in the growth in
international trade commensurate with the needs of their economic
development.These basic principles are found in the preamble[34] of the WTO
Agreement as follows:
163.168. The Parties to this Agreement,
164.169. Recognizing that their relations in the field of trade and economic
endeavour should be conducted with a view to raising standards of living,
ensuring full employment and a large and steadily growing volume of real
income and effective demand, and expanding the production of and trade in
goods and services, while allowing for the optimal use of the worlds resources
in accordance with the objective of sustainable development, seeking both to
protect and preserve the environment and to enhance the means for doing so in
a manner consistent with their respective needs and concerns at different levels
of economic development,
165.170. Recognizing further that there is need for positive efforts designed to
ensure that developing countries, and especially the least developed among
them, secure a share in the growth in international trade commensurate with the
needs of their economic development,
166.171. Being desirous of contributing to these objectives by entering into
reciprocal and mutually advantageous arrangements directed to the substantial
reduction of tariffs and other barriers to trade and to the elimination of
discriminatory treatment in international trade relations,
167.172. Resolved, therefore, to develop an integrated, more viable and durable
multilateral trading system encompassing the General Agreement on Tariffs
and Trade, the results of past trade liberalization efforts, and all of the results of
the Uruguay Round of Multilateral Trade Negotiations,
168.173. Determined to preserve the basic principles and to further the objectives
underlying this multilateral trading system, x x x. (underscoring supplied.)
169.174. Specific WTO Provisos Protect Developing Countries
170.175. So too, the Solicitor General points out that pursuant to and consistent
with the foregoing basic principles, the WTO Agreement grants developing
countries a more lenient treatment, giving their domestic industries some
protection from the rush of foreign competition. Thus, with respect to tariffs in
general, preferential treatment is given to developing countries in terms of
the amount of tariff reduction and the period within which the reduction is to be
spread out. Specifically, GATT requires an average tariff reduction rate of 36%
for developed countries to be effected within a period of six (6) years while
developing countries -- including the Philippines -- are required to effect an
average tariff reduction of only 24% within ten (10) years.
171.176. In respect to domestic subsidy, GATT requires developed countries to
reduce domestic support to agricultural products by 20% over six (6) years, as
compared to only 13% for developing countries to be effected within ten (10)
years.
172.177. In regard to export subsidy for agricultural products, GATT requires
developed countries to reduce their budgetary outlays for export subsidy by
36% and export volumes receiving export subsidy by 21% within a period of six
(6) years. For developing countries, however, the reduction rate is only two-
thirds of that prescribed for developed countries and a longer period of ten (10)
years within which to effect such reduction.
173.178. Moreover, GATT itself has provided built-in protection from unfair foreign
competition and trade practices including anti-dumping measures, countervailing
measures and safeguards against import surges. Where local businesses are
jeopardized by unfair foreign competition, the Philippines can avail of these
measures. There is hardly therefore any basis for the statement that under the
WTO, local industries and enterprises will all be wiped out and that Filipinos will
be deprived of control of the economy. Quite the contrary, the weaker situations
of developing nations like the Philippines have been taken into account; thus,
there would be no basis to say that in joining the WTO, the respondents have
gravely abused their discretion. True, they have made a bold decision to steer
the ship of state into the yet uncharted sea of economic liberalization. But such
decision cannot be set aside on the ground of grave abuse of discretion, simply
because we disagree with it or simply because we believe only in other economic
policies. As earlier stated, the Court in taking jurisdiction of this case will not pass
upon the advantages and disadvantages of trade liberalization as an economic
policy. It will only perform its constitutional duty of determining whether the
Senate committed grave abuse of discretion.
174.179. Constitution Does Not Rule Out Foreign Competition
175.180. Furthermore, the constitutional policy of a self-reliant and independent
national economy[35] does not necessarily rule out the entry of foreign
investments, goods and services. It contemplates neither economic seclusion nor
mendicancy in the international community. As explained by Constitutional
Commissioner Bernardo Villegas, sponsor of this constitutional policy:
176.181. Economic self-reliance is a primary objective of a developing country
that is keenly aware of overdependence on external assistance for even its most
basic needs. It does not mean autarky or economic seclusion; rather, it means
avoiding mendicancy in the international community. Independence refers to
the freedom from undue foreign control of the national economy, especially in
such strategic industries as in the development of natural resources and public
utilities.
[36]

177.182. The WTO reliance on most favored nation, national treatment, and trade
without discrimination cannot be struck down as unconstitutional as in fact they
are rules of equality and reciprocity that apply to all WTO members. Aside from
envisioning a trade policy based on equality and reciprocity, [37] the fundamental
law encourages industries that are competitive in both domestic and foreign
markets, thereby demonstrating a clear policy against a sheltered domestic trade
environment, but one in favor of the gradual development of robust industries
that can compete with the best in the foreign markets. Indeed, Filipino managers
and Filipino enterprises have shown capability and tenacity to compete
internationally. And given a free trade environment, Filipino entrepreneurs and
managers in Hongkong have demonstrated the Filipino capacity to grow and to
prosper against the best offered under a policy of laissez faire.
178.183. Constitution Favors Consumers, Not Industries or Enterprises
179.184. The Constitution has not really shown any unbalanced bias in favor of any
business or enterprise, nor does it contain any specific pronouncement that
Filipino companies should be pampered with a total
proscription of foreign competition. On theother hand, respondents claim that
WTO/GATT aims to make available to the Filipino consumer the best goods and
services obtainable anywhere in the world at the most reasonable
prices. Consequently, the question boils down to whether WTO/GATT will favor
the general welfare of the public at large.
180.185. Will adherence to the WTO treaty bring this ideal (of favoring the general
welfare) to reality?
181.186. Will WTO/GATT succeed in promoting the Filipinos general welfare
because it will -- as promised by its promoters -- expand the countrys exports
and generate more employment?
182.187. Will it bring more prosperity, employment, purchasing power and quality
products at the most reasonable rates to the Filipino public?
183.188. The responses to these questions involve judgment calls by our policy
makers, for which they are answerable to our people during appropriate electoral
exercises. Such questions and the answers thereto are not subject to judicial
pronouncements based on grave abuse of discretion.
184.189. Constitution Designed to Meet Future Events and Contingencies
185.190. No doubt, the WTO Agreement was not yet in existence when the
Constitution was drafted and ratified in 1987. That does not mean however that
the Charter is necessarily flawed in the sense that its framers might not have
anticipated the advent of a borderless world of business. By the same token, the
United Nations was not yet in existence when the 1935 Constitution became
effective. Did that necessarily mean that the then Constitution might not have
contemplated a diminution of the absoluteness of sovereignty when the
Philippines signed the UN Charter, thereby effectively surrendering part of its
control over its foreign relations to the decisions of various UN organs like the
Security Council?
186.191. It is not difficult to answer this question. Constitutions are designed to
meet not only the vagaries of contemporary events.They should be interpreted to
cover even future and unknown circumstances. It is to the credit of its drafters
that a Constitution can withstand the assaults of bigots and infidels but at the
same time bend with the refreshing winds of change necessitated by unfolding
events. As one eminent political law writer and respected jurist[38] explains:
187.192. The Constitution must be quintessential rather than superficial, the root
and not the blossom, the base and framework only of the edifice that is yet to
rise. It is but the core of the dream that must take shape, not in a twinkling by
mandate of our delegates, but slowly in the crucible of Filipino minds and
hearts, where it will in time develop its sinews and gradually gather its strength
and finally achieve its substance. In fine, the Constitution cannot, like the
goddess Athena, rise full-grown from the brow of the Constitutional
Convention, nor can it conjure by mere fiat an instant Utopia. It must grow with
the society it seeks to re-structure and march apace with the progress of the
race, drawing from the vicissitudes of history the dynamism and vitality that
will keep it, far from becoming a petrified rule, a pulsing, living law attuned to
the heartbeat of the nation.
188.193. Third Issue: The WTO Agreement and Legislative Power
189.194. The WTO Agreement provides that (e)ach Member shall ensure the
conformity of its laws, regulations and administrative procedures with its
obligations as provided in the annexed Agreements.[39] Petitioners maintain that
this undertaking unduly limits, restricts and impairs Philippine sovereignty,
specifically the legislative power which under Sec. 2, Article VI of the 1987
Philippine Constitution is vested in the Congress of the Philippines. It is an
assault on the sovereign powers of the Philippines because this means that
Congress could not pass legislation that will be good for our national interest and
general welfare if such legislation will not conform with the WTO Agreement,
which not only relates to the trade in goods x x x but also to the flow of
investments and money x x x as well as to a whole slew of agreements on socio-
cultural matters x x x.[40]
190.195. More specifically, petitioners claim that said WTO proviso derogates from
the power to tax, which is lodged in the Congress.[41] And while the Constitution
allows Congress to authorize the President to fix tariff rates, import and export
quotas, tonnage and wharfage dues, and other duties or imposts, such authority
is subject to specified limits and x x x such limitations and restrictions as
Congress may provide,[42] as in fact it did under Sec. 401 of the Tariff and
Customs Code.
191.196. Sovereignty Limited by International Law and Treaties
192.197. This Court notes and appreciates the ferocity and passion by which
petitioners stressed their arguments on this issue.However, while sovereignty
has traditionally been deemed absolute and all-encompassing on the domestic
level, it is however subject to restrictions and limitations voluntarily agreed to by
the Philippines, expressly or impliedly, as a member of the family of
nations. Unquestionably, the Constitution did not envision a hermit-type isolation
of the country from the rest of the world. In its Declaration of Principles and State
Policies, the Constitution adopts the generally accepted principles of international
law as part of the law of the land, and adheres to the policy of peace, equality,
justice, freedom, cooperation and amity, with all nations."[43] By the doctrine of
incorporation, the country is bound by generally accepted principles of
international law, which are considered to be automatically part of our own
laws.[44] One of the oldest and most fundamental rules in international law is pacta
sunt servanda -- international agreements must be performed in good faith. A
treaty engagement is not a mere moral obligation but creates a legally binding
obligation on the parties x x x. A state which has contracted valid international
obligations is bound to make in its legislations such modifications as may be
necessary to ensure the fulfillment of the obligations undertaken.[45]
193.198. By their inherent nature, treaties really limit or restrict the absoluteness of
sovereignty. By their voluntary act, nations may surrender some aspects of their
state power in exchange for greater benefits granted by or derived from a
convention or pact.After all, states, like individuals, live with coequals, and in
pursuit of mutually covenanted objectives and benefits, they also commonly
agree to limit the exercise of their otherwise absolute rights. Thus, treaties have
been used to record agreements between States concerning such widely diverse
matters as, for example, the lease of naval bases, the sale or cession of territory,
the termination of war, the regulation of conduct of hostilities, the formation of
alliances, the regulation of commercial relations, the settling of claims, the laying
down of rules governing conduct in peace and the establishment of international
organizations.[46] The sovereignty of a state therefore cannot in fact and in reality
be considered absolute. Certain restrictions enter into the picture: (1) limitations
imposed by the very nature of membership in the family of nations and (2)
limitations imposed by treaty stipulations. As aptly put by John F. Kennedy,
Today, no nation can build its destiny alone. The age of self-sufficient nationalism
is over. The age of interdependence is here.[47]
194.199. UN Charter and Other Treaties Limit Sovereignty
195.200. Thus, when the Philippines joined the United Nations as one of its 51
charter members, it consented to restrict its sovereign rights under the concept of
sovereignty as auto-limitation.47-A Under Article 2 of the UN Charter, (a)ll
members shall give the United Nations every assistance in any action it takes in
accordance with the present Charter, and shall refrain from giving assistance to
any state against which the United Nations is taking preventive or enforcement
action. Such assistance includes payment of its corresponding share not merely
in administrative expenses but also in expenditures for the peace-keeping
operations of the organization. In its advisory opinion of July 20, 1961, the
International Court of Justice held that money used by the United Nations
Emergency Force in the Middle East and in the Congo were expenses of the
United Nations under Article 17, paragraph 2, of the UN Charter. Hence, all its
members must bear their corresponding share in such expenses. In this sense,
the Philippine Congress is restricted in its power to appropriate. It is compelled to
appropriate funds whether it agrees with such peace-keeping expenses or
not. So too, under Article 105 of the said Charter, the UN and its representatives
enjoy diplomatic privileges and immunities, thereby limiting again the exercise of
sovereignty of members within their own territory. Another example: although
sovereign equality and domestic jurisdiction of all members are set forth as
underlying principles in the UN Charter, such provisos are however subject to
enforcement measures decided by the Security Council for the maintenance of
international peace and security under Chapter VII of the Charter. A final
example: under Article 103, (i)n the event of a conflict between the obligations of
the Members of the United Nations under the present Charter and their
obligations under any other international agreement, their obligation under the
present charter shall prevail, thus unquestionably denying the Philippines -- as a
member -- the sovereign power to make a choice as to which of conflicting
obligations, if any, to honor.
196.201. Apart from the UN Treaty, the Philippines has entered into many other
international pacts -- both bilateral and multilateral -- that involve limitations on
Philippine sovereignty. These are enumerated by the Solicitor General in his
Compliance dated October 24, 1996, as follows:
197.202. (a) Bilateral convention with the United States regarding taxes on
income, where the Philippines agreed, among others, to exempt from tax,
income received in the Philippines by, among others, the Federal Reserve Bank
of the United States, the Export/Import Bank of the United States, the Overseas
Private Investment Corporation of the United States. Likewise, in said
convention, wages, salaries and similar remunerations paid by the United States
to its citizens for labor and personal services performed by them as employees
or officials of the United States are exempt from income tax by the Philippines.
198.203. (b) Bilateral agreement with Belgium, providing, among others, for the
avoidance of double taxation with respect to taxes on income.
199.204. (c) Bilateral convention with the Kingdom of Sweden for the avoidance
of double taxation.
200.205. (d) Bilateral convention with the French Republic for the avoidance of
double taxation.
201.206. (e) Bilateral air transport agreement with Korea where the Philippines
agreed to exempt from all customs duties, inspection fees and other duties or
taxes aircrafts of South Korea and the regular equipment, spare parts and
supplies arriving with said aircrafts.
202.207. (f) Bilateral air service agreement with Japan, where the Philippines
agreed to exempt from customs duties, excise taxes, inspection fees and other
similar duties, taxes or charges fuel, lubricating oils, spare parts, regular
equipment, stores on board Japanese aircrafts while on Philippine soil.
203.208. (g) Bilateral air service agreement with Belgium where the Philippines
granted Belgian air carriers the same privileges as those granted to Japanese
and Korean air carriers under separate air service agreements.
204.209. (h) Bilateral notes with Israel for the abolition of transit and visitor visas
where the Philippines exempted Israeli nationals from the requirement of
obtaining transit or visitor visas for a sojourn in the Philippines not exceeding
59 days.
205.210. (I) Bilateral agreement with France exempting French nationals from the
requirement of obtaining transit and visitor visa for a sojourn not exceeding 59
days.
206.211. (j) Multilateral Convention on Special Missions, where the Philippines
agreed that premises of Special Missions in the Philippines are inviolable and
its agents can not enter said premises without consent of the Head of Mission
concerned. Special Missions are also exempted from customs duties, taxes and
related charges.
207.212. (k) Multilateral Convention on the Law of Treaties. In this convention,
the Philippines agreed to be governed by the Vienna Convention on the Law of
Treaties.
208.213. (l) Declaration of the President of the Philippines accepting compulsory
jurisdiction of the International Court of Justice. The International Court of
Justice has jurisdiction in all legal disputes concerning the interpretation of a
treaty, any question of international law, the existence of any fact which, if
established, would constitute a breach of international obligation.
209.214. In the foregoing treaties, the Philippines has effectively agreed to limit the
exercise of its sovereign powers of taxation, eminent domain and police
power. The underlying consideration in this partial surrender of sovereignty is the
reciprocal commitment of the other contracting states in granting the same
privilege and immunities to the Philippines, its officials and its citizens. The same
reciprocity characterizes the Philippine commitments under WTO-GATT.
210.215. International treaties, whether relating to nuclear disarmament, human
rights, the environment, the law of the sea, or trade, constrain domestic political
sovereignty through the assumption of external obligations. But unless anarchy
in international relations is preferred as an alternative, in most cases we accept
that the benefits of the reciprocal obligations involved outweigh the costs
associated with any loss of political sovereignty. (T)rade treaties that structure
relations by reference to durable, well-defined substantive norms and objective
dispute resolution procedures reduce the risks of larger countries exploiting raw
economic power to bully smaller countries, by subjecting power relations to
some form of legal ordering. In addition, smaller countries typically stand to
gain disproportionately from trade liberalization.This is due to the simple fact
that liberalization will provide access to a larger set of potential new trading
relationship than in case of the larger country gaining enhanced success to the
smaller countrys market. [48]

211.216. The point is that, as shown by the foregoing treaties, a portion of


sovereignty may be waived without violating the Constitution, based on the
rationale that the Philippines adopts the generally accepted principles of
international law as part of the law of the land and adheres to the policy of x x x
cooperation and amity with all nations.
212.217. Fourth Issue: The WTO Agreement and Judicial Power
213.218. Petitioners aver that paragraph 1, Article 34 of the General Provisions and
Basic Principles of the Agreement on Trade-Related Aspects of Intellectual
Property Rights (TRIPS)[49] intrudes on the power of the Supreme Court to
promulgate rules concerning pleading, practice and procedures.[50]
214.219. To understand the scope and meaning of Article 34, TRIPS, [51] it will be
fruitful to restate its full text as follows:
215.220. Article 34
216.221. Process Patents: Burden of Proof
217.222. 1. For the purposes of civil proceedings in respect of the infringement of
the rights of the owner referred to in paragraph 1(b) of Article 28, if the subject
matter of a patent is a process for obtaining a product, the judicial authorities
shall have the authority to order the defendant to prove that the process to
obtain an identical product is different from the patented process. Therefore,
Members shall provide, in at least one of the following circumstances, that any
identical product when produced without the consent of the patent owner shall,
in the absence of proof to the contrary, be deemed to have been obtained by the
patented process:
218.223. (a) if the product obtained by the patented process is new;
219.224. (b) if there is a substantial likelihood that the identical product was made
by the process and the owner of the patent has been unable through reasonable
efforts to determine the process actually used.
220.225. 2. Any Member shall be free to provide that the burden of proof
indicated in paragraph 1 shall be on the alleged infringer only if the condition
referred to in subparagraph (a) is fulfilled or only if the condition referred to in
subparagraph (b) is fulfilled.
221.226. 3. In the adduction of proof to the contrary, the legitimate interests of
defendants in protecting their manufacturing and business secrets shall be taken
into account.
222.227. From the above, a WTO Member is required to provide a rule of
disputable (note the words in the absence of proof to the contrary) presumption
that a product shown to be identical to one produced with the use of a patented
process shall be deemed to have been obtained by the (illegal) use of the said
patented process, (1) where such product obtained by the patented product is
new, or (2) where there is substantial likelihood that the identical product was
made with the use of the said patented process but the owner of the patent could
not determine the exact process used in obtaining such identical product.Hence,
the burden of proof contemplated by Article 34 should actually be understood as
the duty of the alleged patent infringer to overthrow such presumption. Such
burden, properly understood, actually refers to the burden of evidence (burden of
going forward) placed on the producer of the identical (or fake) product to show
that his product was produced without the use of the patented process.
223.228. The foregoing notwithstanding, the patent owner still has the burden of
proof since, regardless of the presumption provided under paragraph 1 of Article
34, such owner still has to introduce evidence of the existence of the alleged
identical product, the fact that it is identical to the genuine one produced by the
patented process and the fact of newness of the genuine product or the fact of
substantial likelihood that the identical product was made by the patented
process.
224.229. The foregoing should really present no problem in changing the rules of
evidence as the present law on the subject, Republic Act No. 165, as amended,
otherwise known as the Patent Law, provides a similar presumption in cases of
infringement of patented design or utility model, thus:
225.230. SEC. 60. Infringement. - Infringement of a design patent or of a patent
for utility model shall consist in unauthorized copying of the patented design or
utility model for the purpose of trade or industry in the article or product and in
the making, using or selling of the article or product copying the patented
design or utility model. Identity or substantial identity with the patented design
or utility model shall constitute evidence of copying. (underscoring supplied)
226.231. Moreover, it should be noted that the requirement of Article 34 to provide a
disputable presumption applies only if (1) the product obtained by the patented
process is NEW or (2) there is a substantial likelihood that the identical product
was made by the process and the process owner has not been able through
reasonable effort to determine the process used. Where either of these
two provisos does not obtain, members shall be free to determine the appropriate
method of implementing the provisions of TRIPS within their own internal
systems and processes.
227.232. By and large, the arguments adduced in connection with our disposition of
the third issue -- derogation of legislative power - will apply to this fourth issue
also. Suffice it to say that the reciprocity clause more than justifies such intrusion,
if any actually exists. Besides, Article 34 does not contain an unreasonable
burden, consistent as it is with due process and the concept of adversarial
dispute settlement inherent in our judicial system.
228.233. So too, since the Philippine is a signatory to most international
conventions on patents, trademarks and copyrights, the adjustment in legislation
and rules of procedure will not be substantial.[52]
229.234. Fifth Issue: Concurrence Only in the WTO Agreement and Not in
Other Documents Contained in the Final Act
230.235. Petitioners allege that the Senate concurrence in the WTO Agreement and
its annexes -- but not in the other documents referred to in the Final Act, namely
the Ministerial Declaration and Decisions and the Understanding on
Commitments in Financial Services -- is defective and insufficient and thus
constitutes abuse of discretion. They submit that such concurrence in the WTO
Agreement alone is flawed because it is in effect a rejection of the Final Act,
which in turn was the document signed by Secretary Navarro, in representation
of the Republic upon authority of the President. They contend that the second
letter of the President to the Senate[53] which enumerated what constitutes the
Final Act should have been the subject of concurrence of the Senate.
231.236. A final act, sometimes called protocol de clture, is an instrument which
records the winding up of the proceedings of a diplomatic conference and usually
includes a reproduction of the texts of treaties, conventions, recommendations
and other acts agreed upon and signed by the plenipotentiaries attending the
conference.[54] It is not the treaty itself. It is rather a summary of the proceedings
of a protracted conference which may have taken place over several years. The
text of the Final Act Embodying the Results of the Uruguay Round of Multilateral
Trade Negotiations is contained in just one page[55] in Vol. I of the 36-
volume Uruguay Round of Multilateral Trade Negotiations. By signing said Final
Act, Secretary Navarro as representative of the Republic of the Philippines
undertook:
232.237. "(a) to submit, as appropriate, the WTO Agreement for the consideration
of their respective competent authorities with a view to seeking approval of the
Agreement in accordance with their procedures; and
233.238. (b) to adopt the Ministerial Declarations and Decisions."
234.239. The assailed Senate Resolution No. 97 expressed concurrence in exactly
what the Final Act required from its signatories, namely, concurrence of the
Senate in the WTO Agreement.
235.240. The Ministerial Declarations and Decisions were deemed adopted without
need for ratification. They were approved by the ministers by virtue of Article
XXV: 1 of GATT which provides that representatives of the members can meet to
give effect to those provisions of this Agreement which invoke joint action, and
generally with a view to facilitating the operation and furthering the objectives of
this Agreement.[56]
236.241. The Understanding on Commitments in Financial Services also approved
in Marrakesh does not apply to the Philippines. It applies only to those 27
Members which have indicated in their respective schedules of commitments on
standstill, elimination of monopoly, expansion of operation of existing financial
service suppliers, temporary entry of personnel, free transfer and processing of
information, and national treatment with respect to access to payment, clearing
systems and refinancing available in the normal course of business.[57]
237.242. On the other hand, the WTO Agreement itself expresses what multilateral
agreements are deemed included as its integral parts,[58] as follows:
238.243. Article II
239.244. Scope of the WTO
240.245. 1. The WTO shall provide the common institutional framework for the
conduct of trade relations among its Members in matters to the agreements and
associated legal instruments included in the Annexes to this Agreement.
241.246. 2. The Agreements and associated legal instruments included in Annexes
1, 2, and 3 (hereinafter referred to as Multilateral Agreements) are integral parts
of this Agreement, binding on all Members.
242.247. 3. The Agreements and associated legal instruments included in Annex 4
(hereinafter referred to as Plurilateral Trade Agreements) are also part of this
Agreement for those Members that have accepted them, and are binding on
those Members. The Plurilateral Trade Agreements do not create either
obligation or rights for Members that have not accepted them.
243.248. 4. The General Agreement on Tariffs and Trade 1994 as specified in
annex 1A (hereinafter referred to as GATT 1994) is legally distinct from the
General Agreement on Tariffs and Trade, dated 30 October 1947, annexed to
the Final Act adopted at the conclusion of the Second Session of the
Preparatory Committee of the United Nations Conference on Trade and
Employment, as subsequently rectified, amended or modified (hereinafter
referred to as GATT 1947).
244.249. It should be added that the Senate was well-aware of what it was
concurring in as shown by the members deliberation on August 25, 1994. After
reading the letter of President Ramos dated August 11, 1994,[59] the senators of
the Republic minutely dissected what the Senate was concurring in, as follows: [60]
245.250. THE CHAIRMAN: Yes. Now, the question of the validity of the
submission came up in the first day hearing of this Committee yesterday.Was
the observation made by Senator Taada that what was submitted to the Senate
was not the agreement on establishing the World Trade Organization by the
final act of the Uruguay Round which is not the same as the agreement
establishing the World Trade Organization? And on that basis, Senator
Tolentino raised a point of order which, however, he agreed to withdraw upon
understanding that his suggestion for an alternative solution at that time was
acceptable. That suggestion was to treat the proceedings of the Committee as
being in the nature of briefings for Senators until the question of the submission
could be clarified.
246.251. And so, Secretary Romulo, in effect, is the President submitting a new...
is he making a new submission which improves on the clarity of the first
submission?
247.252. MR. ROMULO: Mr. Chairman, to make sure that it is clear cut and there
should be no misunderstanding, it was his intention to clarify all matters by
giving this letter.
248.253. THE CHAIRMAN: Thank you.
249.254. Can this Committee hear from Senator Taada and later on Senator
Tolentino since they were the ones that raised this question yesterday?
250.255. Senator Taada, please.
251.256. SEN. TAADA: Thank you, Mr. Chairman.
252.257. Based on what Secretary Romulo has read, it would now clearly appear
that what is being submitted to the Senate for ratification is not the Final Act of
the Uruguay Round, but rather the Agreement on the World Trade Organization
as well as the Ministerial Declarations and Decisions, and the Understanding
and Commitments in Financial Services.
253.258. I am now satisfied with the wording of the new submission of President
Ramos.
254.259. SEN. TAADA. . . . of President Ramos, Mr. Chairman.
255.260. THE CHAIRMAN. Thank you, Senator Taada. Can we hear from
Senator Tolentino? And after him Senator Neptali Gonzales and Senator Lina.
256.261. SEN TOLENTINO, Mr. Chairman, I have not seen the new submission
actually transmitted to us but I saw the draft of his earlier, and I think it now
complies with the provisions of the Constitution, and with the Final Act
itself. The Constitution does not require us to ratify the Final Act. It requires us
to ratify the Agreement which is now being submitted. The Final Act itself
specifies what is going to be submitted to with the governments of the
participants.
257.262. In paragraph 2 of the Final Act, we read and I quote:
258.263. By signing the present Final Act, the representatives agree: (a) to submit
as appropriate the WTO Agreement for the consideration of the respective
competent authorities with a view to seeking approval of the Agreement in
accordance with their procedures.
259.264. In other words, it is not the Final Act that was agreed to be submitted to
the governments for ratification or acceptance as whatever their constitutional
procedures may provide but it is the World Trade Organization
Agreement. And if that is the one that is being submitted now, I think it
satisfies both the Constitution and the Final Act itself.
260.265. Thank you, Mr. Chairman.
261.266. THE CHAIRMAN. Thank you, Senator Tolentino, May I call on Senator
Gonzales.
262.267. SEN. GONZALES. Mr. Chairman, my views on this matter are already a
matter of record. And they had been adequately reflected in the journal of
yesterdays session and I dont see any need for repeating the same.
263.268. Now, I would consider the new submission as an act ex abudante
cautela.
264.269. THE CHAIRMAN. Thank you, Senator Gonzales. Senator Lina, do you
want to make any comment on this?
265.270. SEN. LINA. Mr. President, I agree with the observation just made by
Senator Gonzales out of the abundance of question. Then the new submission
is, I believe, stating the obvious and therefore I have no further comment to
make.
266.271. Epilogue
267.272. In praying for the nullification of the Philippine ratification of the WTO
Agreement, petitioners are invoking this Courts constitutionally imposed duty to
determine whether or not there has been grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of the Senate in giving its concurrence
therein via Senate Resolution No. 97. Procedurally, a writ of certiorari grounded
on grave abuse of discretion may be issued by the Court under Rule 65 of the
Rules of Court when it is amply shown that petitioners have no other plain,
speedy and adequate remedy in the ordinary course of law.
268.273. By grave abuse of discretion is meant such capricious and whimsical
exercise of judgment as is equivalent to lack of jurisdiction.[61] Mere abuse of
discretion is not enough. It must be grave abuse of discretion as when the power
is exercised in an arbitrary or despotic manner by reason of passion or personal
hostility, and must be so patent and so gross as to amount to an evasion of a
positive duty or to a virtual refusal to perform the duty enjoined or to act at all in
contemplation of law.[62] Failure on the part of the petitioner to show grave abuse
of discretion will result in the dismissal of the petition.[63]
269.274. In rendering this Decision, this Court never forgets that the Senate, whose
act is under review, is one of two sovereign houses of Congress and is thus
entitled to great respect in its actions. It is itself a constitutional body independent
and coordinate, and thus its actions are presumed regular and done in good
faith. Unless convincing proof and persuasive arguments are presented to
overthrow such presumptions, this Court will resolve every doubt in its
favor. Using the foregoing well-accepted definition of grave abuse of discretion
and the presumption of regularity in the Senates processes, this Court cannot
find any cogent reason to impute grave abuse of discretion to the Senates
exercise of its power of concurrence in the WTO Agreement granted it by Sec. 21
of Article VII of the Constitution.[64]
270.275. It is true, as alleged by petitioners, that broad constitutional principles
require the State to develop an independent national economy effectively
controlled by Filipinos; and to protect and/or prefer Filipino labor, products,
domestic materials and locally produced goods. But it is equally true that such
principles -- while serving as judicial and legislative guides -- are not in
themselves sources of causes of action. Moreover, there are other equally
fundamental constitutional principles relied upon by the Senate which mandate
the pursuit of a trade policy that serves the general welfare and utilizes all forms
and arrangements of exchange on the basis of equality and reciprocity and the
promotion of industries which are competitive in both domestic and foreign
markets, thereby justifying its acceptance of said treaty. So too, the alleged
impairment of sovereignty in the exercise of legislative and judicial powers is
balanced by the adoption of the generally accepted principles of international law
as part of the law of the land and the adherence of the Constitution to the policy
of cooperation and amity with all nations.
271.276. That the Senate, after deliberation and voting, voluntarily and
overwhelmingly gave its consent to the WTO Agreement thereby making it a part
of the law of the land is a legitimate exercise of its sovereign duty and power. We
find no patent and gross arbitrariness or despotism by reason of passion or
personal hostility in such exercise. It is not impossible to surmise that this Court,
or at least some of its members, may even agree with petitioners that it is more
advantageous to the national interest to strike down Senate Resolution No.
97. But that is not a legal reason to attribute grave abuse of discretion to the
Senate and to nullify its decision. To do so would constitute grave abuse in the
exercise of our own judicial power and duty.Ineludably, what the Senate did was
a valid exercise of its authority. As to whether such exercise was wise, beneficial
or viable is outside the realm of judicial inquiry and review. That is a matter
between the elected policy makers and the people. As to whether the nation
should join the worldwide march toward trade liberalization and economic
globalization is a matter that our people should determine in electing their policy
makers. After all, the WTO Agreement allows withdrawal of membership, should
this be the political desire of a member.
272.277. The eminent futurist John Naisbitt, author of the best seller Megatrends,
predicts an Asian Renaissance[65] where the East will become the dominant region
of the world economically, politically and culturally in the next century. He refers
to the free market espoused by WTO as the catalyst in this coming Asian
ascendancy. There are at present about 31 countries including China, Russia
and Saudi Arabia negotiating for membership in the WTO. Notwithstanding
objections against possible limitations on national sovereignty, the WTO remains
as the only viable structure for multilateral trading and the veritable forum for the
development of international trade law. The alternative to WTO is isolation,
stagnation, if not economic self-destruction.Duly enriched with original
membership, keenly aware of the advantages and disadvantages of globalization
with its on-line experience, and endowed with a vision of the future, the
Philippines now straddles the crossroads of an international strategy for
economic prosperity and stability in the new millennium. Let the people, through
their duly authorized elected officers, make their free choice.
273.278. WHEREFORE, the petition is DISMISSED for lack of merit.
274.279. SO ORDERED.
275.280. Narvasa, C.J., Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno,
Kapunan, Mendoza, Francisco, Hermosisima, Jr., and Torres, Jr., JJ., concur.
276.281. Padilla, and Vitug, JJ., in the result.
277.282.

278.283.
279.284. [1]
In Annex A of her Memorandum, dated August 8, 1996, received by this Court on
August 12, 1996, Philippine Ambassador to the United Nations, World Trade Organization and
other international organizations Lilia R. Bautista (hereafter referred to as Bautista Paper)
submitted a 46-year Chronology of GATT as follows:
280.285. 1947 The birth of GATT. On 30 October 1947, the General Agreement on
Tariffs and Trade (GATT) was signed by 23 nations at the Palais des Nations in
Geneva. The Agreement contained tariff concessions agreed to in the first multilateral
trade negotiations and a set of rules designed to prevent these concessions from being
frustrated by restrictive trade measures.
281.286. The 23 founding contracting parties were members of the Preparatory Committee
established by the United Nations Economic and Social Council in 1946 to draft the
charter of the International Trade Organization (ITO). The ITO was envisaged as the final
leg of a triad of post-War economic agencies (the other two were the International
Monetary Fund and the International Bank for Reconstruction - later the World Bank).
282.287. In parallel with this task, the Committee members decided to negotiate tariff
concessions among themselves. From April to October 1947, the participants completed
some 123 negotiations and established 20 schedules containing the tariff reductions and
bindings which became an integral part of GATT. These schedules resulting from the first
Round covered some 45,000 tariff concessions and about $10 billion in trade.
283.288. GATT was conceived as an interim measure that put into effect the commercial-
policy provisions of the ITO. In November, delegations from 56 countries met in Havana,
Cuba, to consider the ITO draft as a whole. After long and difficult negotiations, some 53
countries signed the Final Act authenticating the text of the Havana Charter in March
1948. There was no commitment, however, from governments to ratification and, in the
end, the ITO was stillborn, leaving GATT as the only international instrument governing
the conduct of world trade.
284.289. 1948 Entry into force. On 1 January 1948, GATT entered into force. The 23
founding members were: Australia, Belgium, Brazil, Burma, Canada, Ceylon, Chile,
China, Cuba, Czechoslovakia, France, India, Lebanon, Luxemburg, Netherlands, New
Zealand, Norway, Pakistan, Southern Rhodesia, Syria, South Africa, United Kingdom and
United States. The first Session of the contracting parties was held from February to
March in Havana, Cuba. The secretariat of the Interim Commission for the ITO, which
served as the ad hoc secretariat of GATT, move from lake Placid, New York, to
Geneva. The Contracting Parties held their second session in Geneva from August to
September.
285.290. 1949 Second Round at Annecy. During the second Round of trade
negotiations, held from April to August at Annecy, France, the contracting parties
exchange some 5,000 tariff concession. At their third Session, they also dealt with the
accession of ten more countries.
286.291. 1950 Third Round At Torquay. From September 1950 to April 1951, the
contracting parties exchange some 8,700 tariff concessions in the English town, yielding
tariff reduction of about 25 per cent in relation to the 1948 level. Four more countries
acceded to GATT. During the fifth Session of the Contracting Parties, the United States
indicated that the ITO Charter would not be re-submitted to the US congress; this, in
effect, meant that ITO would not come into operation.
287.292. 1956 Fourth Round at Geneva. The fourth Round was completed in May and
produce some $2.5 billion worth of tariff reductions. At the beginning of the year, the
GATT commercial policy course for officials of developing countries was inaugurated.
288.293. 1958 The Haberler Report. GATT published Trends in International Trade in
October. Known as the "Haberler Report" in honour of Professor Gottfried Haberler, the
chairman of the panel of imminent economist, it provided initial guidelines for the work of
GATT. The Contracting Parties at their 13th Sessions, attended by Ministers,
subsequently established 3 committees in GATT:Committee I to convene a further tariff
negotiating conference; Committee II To review the agricultural policies of member
governments and Committee III to tackle the problems facing developing countries in
their trade. The establishment of the European Economic Community during the previous
year also demanded large scale tariff negotiation under Article XXIV 6 of the General
Agreement.
289.294. 1960 The Dillon Round. The fifth Round opened in September and was divided
into two phases: the first was concerned with EEC members states for the creation of a
single schedule of concessions for the Community based on its Common External Tariff;
and the second was a further general round of tariff negotiations. Named in honor of US
Under-Secretary of State Douglas Dillon who proposed the negotiations, the Round was
concluded in July 1962 and resulted in about 4,400 tariff concessions covering $4.9
billion of trade.
290.295. 1961 The Short-Term Arrangement covering cotton textiles was agreed as an
exception to the GATT rules. The arrangement permitted the negotiation of quota
restrictions affecting the exports of cotton-producing countries. In 1962 the "Short Term "
Arrangement become the "Long term" Arrangement, lasting until 1974 when the Multifibre
Arrangement entered into force.
291.296. 1964 The Kennedy Round. Meeting at Ministerial Level, a Trade Negotiations
Committee formally opened the Kennedy Round in May.In June 1967, the Round's Final
Act was signed by some 50 participating countries which together accounted for 75 per
cent of world trade. For the first time, negotiation departed from product-by-product
approach used in the previous Rounds to an across-the-board or linear method of cutting
tariffs for industrial goods. The working hypothesis of a 50 per cent target cut in tariff
levels was achieved in many areas. Concessions covered an estimated total value of
trade of about $40 billion. Separate agreements were reached on grains, chemical
products and a Code on Anti-Dumping.
292.297. 1965 A New Chapter. The early 1960s marked the accession to the General
Agreement of many newly-independent developing countries. In February, the
Contracting Parties, meeting in a special session, adopted the text of Part IV on Trade
and Development. The additional chapter to the GATT required developed countries to
accord high priority to the reduction of trade barriers to products of developing
countries. A committee on Trade and Development was established to oversee the
functioning of the new GATT provisions. In the preceding year, GATT had established the
International Trade Center (ITC) to help developing countries in trade promotion and
identification of potential markets. Since 1968, the ITC had been jointly operated by
GATT and the UN Conference on Trade and Development (UNCTAD).
293.298. 1973 The Tokyo Round. The seventh Round was launched by Ministers in
September at the Japanese capital. Some 99 countries participated in negotiating a
comprehensive body of agreements covering both tariff and non-tariff matters. At the end
of the Round in November 1979, participants exchange tariff reduction and bindings
which covered more than $300 billion of trade. As a result of these cuts, the weighted
average tariff on manufactured goods in the world's nine major Industrial Markets
declined from 7.0 to 4.7 per cent. Agreements were reached in the following areas;
subsidies and countervailing measures, technical barriers to trade, import licensing
procedures, government procurement, customs valuation, a revised anti-dumping code,
trade in bovine meat, trade in daily products and trade in civil aircraft. The first concrete
result of the Round was the reduction of import duties and other trade barriers by
industrial countries on tropical products exported by developing countries.
294.299. 1974 On 1 January 1974, the Arrangement Regarding International Trade in
textiles, otherwise known as the Multifibre Arrangement(MFA), entered into force. Its
superseded the arrangement that had been governing trade in cotton textiles since
1961. The MFA seeks to promote the expansion and progressive liberalization of trade in
textile product while at the same time avoiding disruptive effects in individual markets in
lines of production. The MFA was extended in 1978, 1982, 1986, 1991 and 1992. MFA
members account for most of the world exports of textiles and clothing which in 1986
amounted to US$128 billion.
295.300. 1982 Ministerial Meeting. Meeting for the first time in nearly ten years, the
GATT Ministers in November at Geneva reaffirmed the validity of GATT rules for the
conduct of international trade and committed themselves to combating protectionist
pressures.They also established a wide-ranging work programme for the GATT which
was to laid down the ground work for a new Round. 1986 The Uruguay Round. The
GATT Trade Ministers meeting at Punta del Este, Uruguay, launched the eighth Round of
Trade Negotiations on 20 September. The Punta del Este, declarations, while
representing a single political undertaking, was divided into two section. The First
covered negotiations on Trade in goods and the second initiated negotiation on trade in
services. In the area of trade in goods, the Ministers committed themselves to
a "standstill" on new trade measures inconsistent with their GATT obligations and to a
"rollback" programme aimed at phasing out existing inconsistent measures. Envisaged to
last four years, negotiations started in early February 1987 in the following areas: tariffs,
non-tariff measures, tropical products, natural resource-based products, textiles and
clothing, agriculture, subsidies, safeguards, trade-related aspects of intellectual property
rights including trade in counterfeit goods, in trade- related investment measures. The
work of other groups included a review of GATT articles, the GATT dispute-settlement
procedure, the Tokyo Round agreements, as well as functioning of the GATT system as
a whole.
296.301. 1994 "GATT 1994" is the updated version of GATT 1947 and takes into account the
substantive and institutional changes negotiated in the Uruguay Round. GATT 1994 is an integral
part of the World Trade Organization established on 1 January 1995. It is agreed that there be a
one year transition period during which certain GATT 1947 bodies and commitments would co-
exist with those of the World Trade Organization."
297.302. [2]
The Final Act was signed by representatives of 125 entities, namely Algeria, Angola,
Antigua and Barbuda, Argentine Republic, Australia, Republic of Austria, State of Bahrain,
Peoples Republic of Bangladesh, Barbados, The Kingdom of Belgium, Belize, Republic of Benin,
Bolivia, Botswana, Brazil, Brunei Darussalam, Burkina Faso, Burundi, Cameroon, Canada,
Central African Republic, Chad, Chile, Peoples Republic of China, Colombia, Congo, Costa Rica,
Republic of Cote dIvoire, Cuba, Cyprus, Czech Republic, Kingdom of Denmark, Commonwealth
of Dominica, Dominican Republic, Arab Republic of Egypt, El Salvador, European Communities,
Republic of Fiji, Finland, French Republic, Gabonese Republic, Gambia, Federal Republic of
Germany, Ghana, Hellenic Republic, Grenada, Guatemala, Republic of Guinea-Bissau, Republic
of Guyana, Haiti, Honduras, Hong Kong, Hungary, Iceland, India, Indonesia, Ireland, State of
Israel, Italian Republic, Jamaica, Japan, Kenya, Korea, State of Kuwait, Kingdom of Lesotho,
Principality of Liechtenstein, Grand Duchy of Luxembourg, Macau, Republic of Madagascar,
Republic of Malawi, Malaysia, Republic of Maldives, Republic of Mali, Republic of Malta, Islamic
Republic of Mauritania, Republic of Mauritius, United Mexican States, Kingdom of Morocco,
Republic of Mozambique, Union of Myanmar, Republic of Namibia, Kingdom of the Netherlands,
New Zealand, Nicaragua, Republic of Niger, Federal Republic of Nigeria, Kingdom of Norway,
Islamic Republic of Pakistan, Paraguay, Peru, Philippines, Poland, Portuguese Republic, State of
Qatar, Romania, Rwandese Republic, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the
Grenadines, Senegal, Sierra Leone, Singapore, Slovak Republic, South Africa, Kingdom of
Spain, Democratic Socialist Republic of Sri Lanka, Republic of Surinam, Kingdom of Swaziland,
Kingdom of Sweden, Swiss Confederation, United Republic of Tanzania, Kingdom of Thailand,
Togolese Republic, Republic of Trinidad and Tobago, Tunisia, Turkey, Uganda, United Arab
Emirates, United Kingdom of Great Britain and Northern Ireland, United States of America,
Eastern Republic of Uruguay, Venezuela, Republic of Zaire, Republic of Zambia, Republic of
Zimbabwe; see pp. 6-25, Vol. 1, Uruguay Round of Multilateral Trade Negotiations.
298.303. [3] 11 August 1994
299.304. The Honorable Members
300.305. Senate
301.306. Through Senate President Edgardo Angara
302.307. Manila
303.308. Ladies and Gentlemen:
304.309. I have the honor to forward herewith an authenticated copy of the Uruguay Round Final
Act signed by Department of Trade and Industry Secretary Rizalino S. Navarro for the Philippines
on 15 April 1994 in Marrakesh, Morocco.
305.310. The Uruguay Round Final Act aims to liberalize and expand world trade and strengthen
the interrelationship between trade and economic policies affecting growth and development.
306.311. The Final Act will improve Philippine access to foreign markets, especially its major
trading partners through the reduction of tariffs on its exports particularly agricultural and
industrial products. These concessions may be availed of by the Philippines, only if it is a member
of the World Trade Organization. By GATT estimates, the Philippines can acquire additional
export revenues from $2.2 to $2.7 Billion annually under Uruguay Round. This will be on top of
the normal increase in exports that the Philippines may experience.
307.312. The Final Act will also open up new opportunities for the services sector in such areas as
the movement of personnel, (e.g. professional services and construction services), cross-border
supply (e.g. computer-related services), consumption abroad (e.g. tourism, convention services,
etc.) and commercial presence.
308.313. The clarified and improved rules and disciplines on anti-dumping and countervailing
measures will also benefit Philippine exporters by reducing the costs and uncertainty associated
with exporting while at the same time providing a means for domestic industries to safeguard
themselves against unfair imports.
309.314. Likewise, the provision of adequate protection for intellectual property rights is expected
to attract more investments into the country and to make it less vulnerable to unilateral actions by
its trading partners (e.g. Sec. 301 of the United States Omnibus Trade Law).
310.315. In view of the foregoing, the Uruguay Round Final Act is hereby submitted to the Senate
for its concurrence pursuant to Section 21, Article VII of the Constitution.
311.316. A draft of a proposed Resolution giving its concurrence to the aforesaid Agreement is
enclosed.
312.317. Very truly yours,
313.318. (SGD.) FIDEL V. RAMOS
314.319. [4] 11 August 1994
315.320. The Honorable Members
316.321. Senate
317.322. Through Senate President Edgardo Angara
318.323. Manila
319.324. Ladies and Gentlemen:
320.325. I have the honor to forward herewith an authenticated copy of the Uruguay Round Final
Act signed by Department of Trade and Industry Secretary Rizalino S. Navarro for the Philippines
on 13 April 1994 in Marrakech (sic), Morocco.
321.326. Members of the trade negotiations committee, which included the Philippines, agreed that
the Agreement Establishing the World Trade Organization, the Ministerial Declarations and
Decisions, and the Understanding on Commitments in Financial Services embody the results of
their negotiations and form an integral part of the Uruguay Round Final Act.
322.327. By signing the Uruguay Round Final Act, the Philippines, through Secretary Navarro,
agreed:
323.328. (a) To submit the Agreement Establishing the World Trade Organization to the Senate for
its concurrence pursuant to Section 21, Article VII of the Constitution; and
324.329. (b) To adopt the Ministerial Declarations and Decisions.
325.330. The Uruguay Round Final Act aims to liberalize and expand world trade and strengthen
the interrelationship between trade and economic policies affecting growth and development.
326.331. The Final Act will improve Philippine access to foreign markets, especially its major
trading partners through the reduction of tariffs on its exports particularly agricultural and
industrial products. These concessions may be availed of by the Philippines, only if it is a member
of the World Trade Organization. By GATT estimates, the Philippines can acquire additional
export revenues from $2.2 to $2.7 Billion annually under Uruguay Round. This will be on top of
the normal increase in the exports that the Philippines may experience.
327.332. The Final Act will also open up new opportunities for the services sector in such areas as
the movement of personnel, (e.g., professional services and construction services), cross-border
supply (e.g., computer-related services), consumption abroad (e.g., tourism, convention services,
etc.) and commercial presence.
328.333. The clarified and improved rules and disciplines on anti-dumping and countervailing
measures will also benefit Philippine exporters by reducing the costs and uncertainty associated
with exporting while at the same time providing a means for domestic industries to safeguard
themselves against unfair imports.
329.334. Likewise, the provision of adequate protection for intellectual property rights is expected
to attract more investments into the country and to make it a less vulnerable to unilateral actions
by its trading partners (e.g., Sec. 301 of the United States Omnibus Trade Law).
330.335. In view of the foregoing, the Uruguay Round Final Act, the Agreement Establishing the
World Trade Organization, the Ministerial Declarations and Decisions, and the Understanding on
Commitments in Financial Services, as embodied in the Uruguay Round Final Act and forming
and integral part thereof are hereby submitted to the Senate for its concurrence pursuant to
Section 21, Article VII of the Constitution.
331.336. A draft of a proposed Resolution giving its concurrence to the aforesaid Agreement is
enclosed.
332.337. Very truly yours,
333.338. (SGD.) FIDEL V. RAMOS
334.339. [5] December 9, 1994
335.340. HON. EDGARDO J. ANGARA
336.341. Senate President
337.342. Senate, Manila
338.343. Dear Senate President Angara:
339.344. Pursuant to the provisions of Sec. 26 (2) Article VI of the Constitution, I hereby certify to
the necessity of the immediate adoption of P.S. 1083, entitled:
340.345. CONCURRING IN THE RATIFICATION OF THE AGREEMENT ESTABLISHING THE
WORLD TRADE ORGANIZATION
341.346. to meet a public emergency consisting of the need for immediate membership in the
WTO in order to assure the benefits to the Philippine economy arising from such membership.
342.347. Very truly yours,
343.348. (SGD.) FIDEL V. RAMOS
344.349. [6]
Attached as Annex A, Petition; rollo, p. 52. P.S. 1083 is the forerunner of assailed
Senate Resolution No. 97. It was prepared by the Committee of the Whole on the General
Agreement on Tariffs and Trade chaired by Sen. Blas F. Ople and co-chaired by Sen. Gloria
Macapagal-Arroyo; see Annex C, Compliance of petitioners dated January 28, 1997.
345.350. [7]
The Philippines is thus considered an original or founding member of WTO, which as of
July 26, 1996 had 123 members as follows: Antigua and Barbuda, Argentina, Australia, Austria,
Bahrain, Bangladesh, Barbados, Belgium, Belize, Benin, Bolivia, Botswana, Brazil, Brunei
Darussalam, Burkina Faso, Burundi, Cameroon, Canada, Central African Republic, Chili,
Colombia, Costa Rica, Cote dIvoire, Cuba, Cyprus, Czech Republic, Denmark, Djibouti,
Dominica, Dominican Republic, Ecuador, Egypt, El Salvador, European Community, Fiji, Finland,
France, Gabon, Germany, Ghana, Greece, Grenada, Guatemala, Guinea, Guinea Bissau,
Guyana, Haiti, Honduras, Hongkong, Hungary, Iceland, India, Indonesia, Ireland, Israel, Italy,
Jamaica, Japan, Kenya, Korea, Kuwait, Lesotho, Liechtenstein, Luxembourg, Macau,
Madagascar, Malawi, Malaysia, Maldives, Mali, Malta, Mauritania, Mauritius, Mexico, Morocco,
Mozambique, Myanmar, Namibia, Netherlands -- for the Kingdom in Europe and for the
Netherlands Antilles, New Zealand, Nicaragua, Nigeria, Norway, Pakistan, Papua New Guinea,
Paraguay, Peru, Philippines, Poland, Portugal, Qatar, Romania, Rwanda, Saint Kitts and Nevis,
Saint Lucia, Saint Vincent & the Grenadines, Senegal, Sierra Leone, Singapore, Slovak Republic,
Slovenia, Solomon Islands, South Africa, Spain, Sri Lanka, Surinam, Swaziland, Sweden,
Switzerland, Tanzania, Thailand, Togo, Trinidad and Tobago, Tunisia, Turkey, Uganda, United
Arab Emirates, United Kingdom, United States, Uruguay, Venezuela, Zambia, and
Zimbabwe. See Annex A, Bautista Paper, infra.
346.351. [8]
Page 6; rollo, p. 261.
347.352. [9]
In compliance, Ambassador Bautista submitted to the Court on August 12, 1996, a
Memorandum (the Bautista Paper) consisting of 56 pages excluding annexes. This is the same
document mentioned in footnote no. 1.
348.353. [10]
Memorandum for Respondents, p. 13; rollo, p. 268.
349.354. [11]
Cf. Kilosbayan, Incorporated vs. Morato, 246 SCRA 540, July 17, 1995 for a
discussion on locus standi. See also the Concurring Opinion of Mr. Justice Vicente V. Mendoza in
Tatad vs. Garcia, Jr., 243 SCRA 473, April 6, 1995, as well as Kilusang Mayo Uno Labor
Center vs. Garcia, Jr., 239 SCRA 386, 414, December 23, 1994.
350.355. [12]
Aquino, Jr. vs. Ponce Enrile, 59 SCRA 183, 196, September 17, 1974, cited in
Bondoc vs. Pineda, 201 SCRA 792, 795, September 26, 1991.
351.356. [13]
Guingona, Jr. vs. Gonzales, 219 SCRA 326, 337, March 1, 1993.
352.357. [14]
See Tanada and Macapagal vs. Cuenco, et al., 103 Phil. 1051 for a discussion on the
scope of political question.
353.358. [15]
Section 1, Article VIII, (par. 2).
354.359. [16]
In a privilege speech on May 17, 1993, entitled Supreme Court -- Potential Tyrant?
Senator Arturo Tolentino concedes that this new provision gives the Supreme Court a duty to
intrude into the jurisdiction of the Congress or the President.
355.360. [17]
I Record of the Constitutional Commission 436.
356.361. [18]
Cf. Daza vs. Singson, 180 SCRA 496, December 21, 1989.
357.362. [19]
Memorandum for Petitioners, pp. 14-16; rollo, pp. 204-206.
358.363. [20]
Par. 4, Article XVI, WTO Agreement, Uruguay Round of Multilateral Trade
Negotiations, Vol. 1, p. 146.
359.364. [21]
Also entitled Declaration of Principles. The nomenclature in the 1973 Charter is
identical with that in the 1987s.
360.365. [22]
Philippine Political Law, 1962 Ed., p. 116.
361.366. [23]
Bernas, The Constitution of the Philippines: A Commentary, Vol. II, 1988 Ed., p. 2. In
the very recent case of Manila Prince Hotel vs. GSIS, G.R. No. 122156, February 3, 1997, p. 8, it
was held that A provision which lays down a general principle, such as those found in Art. II of the
1987 Constitution, is usually not self-executing.
362.367. [24]
246 SCRA 540, 564, July 17, 1995. See also Tolentino vs. Secretary of Finance, G.R.
No. 115455 and consolidated cases, August 25, 1995.
363.368. [25]
197 SCRA 52, 68, May 14, 1991.
364.369. [26]
224 SCRA 792, 817, July 30, 1993.
365.370. [27]
Sec. 10, Article XII.
366.371. [28]
Sec. 12, Article XII.
367.372. [29]
Sec. 19, Art. II.
368.373. [30]
Sec. 13, Art. XII.
369.374. [31]
G.R. No. 122156, February 3, 1997, pp. 13-14.
370.375. [32]
Sec. 1, Art. XII.
371.376. [33]
Bautista Paper, p. 19.
372.377. [34]
Preamble, WTO Agreement p. 137, Vol. 1, Uruguay Round of Multilateral Trade
Negotiations. Underscoring supplied.
373.378. [35]
Sec. - 19, Article II, Constitution.
374.379. [36]
III Records of the Constitutional Commission 252.
375.380. [37]
Sec. 13, Article XII, Constitution.
376.381. [38]
Justice Isagani A. Cruz, Philippine Political Law, 1995 Ed., p. 13, quoting his own
article entitled, A Quintessential Constitution earlier published in the San Beda Law Journal, April
1972; underscoring supplied.
377.382. [39]
Par. 4, Article XVI (Miscellaneous Provisions), WTO Agreement, p.146, Vol.
1, Uruguay Round of Multilateral Trade Negotiations.
378.383. [40]
Memorandum for the Petitioners, p. 29; rollo, p. 219.
379.384. [41]
Sec. 24, Article VI, Constitution.
380.385. [42]
Subsection (2), Sec. 28, Article, VI Constitution.
381.386. [43]
Sec. 2, Article II, Constitution.
382.387. [44]
Cruz, Philippine Political Law, 1995 Ed., p. 55.
383.388. [45]
Salonga and Yap, op cit 305.
384.389. [46]
Salonga, op. cit., p. 287.
385.390. [47]
Quoted in Paras and Paras, Jr., International Law and World Politics, 1994 Ed., p. 178.
386.391. 47-A Reagan vs. Commission of Internal Revenue, 30 SCRA 968, 973, December 27,

1969.
387.392. [48]
Trebilcock and Howse. The Regulation of International Trade, p. 14, London, 1995,
cited on p. 55-56, Bautista Paper.
388.393. [49]
Uruguay Round of Multilateral Trade Negotiations, Vol. 31, p. 25445.
389.394. [50]
Item 5, Sec. 5, Article VIII, Constitution.
390.395. [51]
Uruguay Round of Multilateral Trade Negotiations, Vol. 31, p. 25445.
391.396. [52]
Bautista Paper, p. 13.
392.397. [53]
See footnote 3 of the text of this letter.
393.398. [54]
Salonga and Yap, op cit., pp. 289-290.
394.399. [55]
The full text, without the signatures, of the Final Act is as follows:
395.400. Final Act Embodying the Results of the
396.401. Uruguay Round of Multilateral Trade Negotiations
397.402. 1. Having met in order to conclude the Uruguay Round of Multilateral Trade Negotiations,
representatives of the governments and of the European Communities, members of the Trade
Negotiations Committee, agree that the Agreement Establishing the World Trade Organization
(referred to in the Final Act as the WTO Agreement), the Ministerial Declarations and Decisions,
and the Understanding on Commitments in Financial Services, as annexed hereto, embody the
results of their negotiations and form an integral part of this Final Act.
398.403. 2. By signing to the present Final Act, the representatives agree.
399.404. (a) to submit, as appropriate, the WTO Agreement for the consideration of their
respective competent authorities with a view to seeking approval of the Agreement in accordance
with their procedures; and
400.405. (b) to adopt the Ministerial Declarations and Decisions.
401.406. 3. The representatives agree on the desirability of acceptance of the WTO Agreement by
all participants in the Uruguay Round of Multilateral Trade Negotiations (hereinafter referred to as
participants) with a view to its entry into force by 1 January 1995, or as early as possible
thereafter. Not later than late 1994, Ministers will meet, in accordance with the final paragraph of
the Punta del Este Ministerial Declarations, to decide on the international implementation of the
results, including the timing of their entry into force.
402.407. 4. The representatives agree that the WTO Agreement shall be opened for acceptance
as a whole, by signature or otherwise, by all participants pursuant to Article XIV thereof. The
acceptance and entry into force of a Plurilateral Trade Agreement included in Annex 4 of the
WTO Agreement shall be governed by the provisions of that Plurilateral Trade Agreement.
403.408. 5. Before accepting the WTO Agreement, participants which are not contracting parties to
the General Agreement on Tariffs and Trade must first have concluded negotiations for their
accession to the General Agreement and become contracting parties thereto. For participants
which are not contracting parties to the general Agreement as of the date of the Final Act, the
Schedules are not definitive and shall be subsequently completed for the purpose of their
accession to the General Agreement and acceptance of the WTO Agreement.
404.409. 6. This Final Act and the Texts annexed hereto shall be deposited with the Director-
General to the CONTRACTING PARTIES to the General Agreement on Tariffs and Trade who
shall promptly furnish to each participant a certified copy thereof.
405.410. DONE at Marrakesh this fifteenth day of April One thousand nine hundred and ninety-
four, in a single copy, in the English, French and Spanish languages, each text being authentic."
406.411. [56]
Bautista Paper, p. 16.
407.412. [57]
Bautista Paper, p. 16.
408.413. [58]
Uruguay Round of Multilateral Trade Negotiations, Vol. I, pp. 137-138.
409.414. [59]
See footnote 3 for complete text.
410.415. [60]
Taken from pp. 63-85, Respondent Memorandum.
411.416. [61]
Zarate vs. Olegario, G.R. No. 90655, October 7, 1996.
412.417. [62]
San Sebastian College vs. Court of Appeals, 197 SCRA 138, 144, May 15, 1991;
Commissioner of Internal Revenue vs. Court of Tax Appeals, 195 SCRA 444, 458 March 20,
1991; Simon vs. Civil Service Commission, 215 SCRA 410, November 5, 1992;
Bustamante vs. Commissioner on Audit, 216 SCRA 134, 136, November 27, 1992.
413.418. [63]
Paredes vs. Civil Service Commission, 192 SCRA 84, 94, December 4, 1990.
414.419. [64]
Sec. 21. No treaty or international agreement shall be valid and effective unless
concurred in by at least two-thirds of all the Members of the Senate.
415.420. [65]
Readers Digest, December 1996 issue, p. 28.
416.421. EN BANC
417.422. [G.R. No. 122156. February 3, 1997]
418.423. MANILA PRINCE HOTEL, petitioner, vs.
GOVERNMENT SERVICE INSURANCE SYSTEM, MANILA HOTEL
CORPORATION, COMMITTEE ON PRIVATIZATION and OFFICE
OF THE GOVERNMENT CORPORATE COUNSEL, respondents.
419.424. DECISION
420.425. BELLOSILLO, J.:
421.426. The Filipino First Policy enshrined in the 1987 Constitution, i.e., in the
grant of rights, privileges, and concessions covering the national economy and
patrimony, the State shall give preference to qualified Filipinos,[1] is invoked by
petitioner in its bid to acquire 51% of the shares of the Manila Hotel Corporation
(MHC) which owns the historic Manila Hotel. Opposing, respondents maintain
that the provision is not self-executing but requires an implementing legislation
for its enforcement.Corollarily, they ask whether the 51% shares form part of the
national economy and patrimony covered by the protective mantle of the
Constitution.
422.427. The controversy arose when respondent Government Service Insurance
System (GSIS), pursuant to the privatization program of the Philippine
Government under Proclamation No. 50 dated 8 December 1986, decided to sell
through public bidding 30% to 51% of the issued and outstanding shares of
respondent MHC. The winning bidder, or the eventual strategic partner, is to
provide management expertise and/or an international marketing/reservation
system, and financial support to strengthen the profitability and performance of
the Manila Hotel.[2] In a close bidding held on 18 September 1995 only two (2)
bidders participated: petitioner Manila Prince Hotel Corporation, a Filipino
corporation, which offered to buy 51% of the MHC or 15,300,000 shares
at P41.58 per share, and Renong Berhad, a Malaysian firm, with ITT-Sheraton as
its hotel operator, which bid for the same number of shares at P44.00 per share,
or P2.42 more than the bid of petitioner.
423.428. Pertinent provisions of the bidding rules prepared by respondent GSIS
state -
424.429. I. EXECUTION OF THE NECESSARY CONTRACTS WITH
GSIS/MHC -
425.430. 1. The Highest Bidder must comply with the conditions set forth below
by October 23, 1995 (reset to November 3, 1995) or the Highest Bidder will
lose the right to purchase the Block of Shares and GSIS will instead offer the
Block of Shares to the other Qualified Bidders:
426.431. a. The Highest Bidder must negotiate and execute with the GSIS/MHC
the Management Contract, International Marketing/Reservation System
Contract or other type of contract specified by the Highest Bidder in its
strategic plan for the Manila Hotel x x x x
427.432. b. The Highest Bidder must execute the Stock Purchase and Sale
Agreement with GSIS x x x x
428.433. K. DECLARATION OF THE WINNING BIDDER/STRATEGIC
PARTNER -
429.434. The Highest Bidder will be declared the Winning Bidder/Strategic
Partner after the following conditions are met:
430.435. a. Execution of the necessary contracts with GSIS/MHC not later than
October 23, 1995 (reset to November 3, 1995); and
431.436. b. Requisite approvals from the GSIS/MHC and COP (Committee on
Privatization)/ OGCC (Office of the Government Corporate Counsel) are
obtained. [3]

432.437. Pending the declaration of Renong Berhard as the winning


bidder/strategic partner and the execution of the necessary contracts, petitioner
in a letter to respondent GSIS dated 28 September 1995 matched the bid price
of P44.00 per share tendered by Renong Berhad.[4] In a subsequent letter dated
10 October 1995 petitioner sent a managers check issued by Philtrust Bank for
Thirty-three Million Pesos (P33,000,000.00) as Bid Security to match the bid of
the Malaysian Group, Messrs. Renong Berhad x x x x[5] which respondent GSIS
refused to accept.
433.438. On 17 October 1995, perhaps apprehensive that respondent GSIS has
disregarded the tender of the matching bid and that the sale of 51% of the MHC
may be hastened by respondent GSIS and consummated with Renong Berhad,
petitioner came to this Court on prohibition and mandamus. On 18 October 1995
the Court issued a temporary restraining order enjoining respondents from
perfecting and consummating the sale to the Malaysian firm.
434.439. On 10 September 1996 the instant case was accepted by the Court En
Banc after it was referred to it by the First Division.The case was then set for oral
arguments with former Chief Justice Enrique M. Fernando and Fr. Joaquin G.
Bernas, S.J., as amici curiae.
435.440. In the main, petitioner invokes Sec. 10, second par., Art. XII, of the 1987
Constitution and submits that the Manila Hotel has been identified with the
Filipino nation and has practically become a historical monument which reflects
the vibrancy of Philippine heritage and culture. It is a proud legacy of an earlier
generation of Filipinos who believed in the nobility and sacredness of
independence and its power and capacity to release the full potential of the
Filipino people. To all intents and purposes, it has become a part of the national
patrimony.[6] Petitioner also argues that since 51% of the shares of the MHC
carries with it the ownership of the business of the hotel which is owned by
respondent GSIS, a government-owned and controlled corporation, the hotel
business of respondent GSIS being a part of the tourism industry is
unquestionably a part of the national economy. Thus, any transaction involving
51% of the shares of stock of the MHC is clearly covered by the term national
economy, to which Sec. 10, second par., Art. XII, 1987 Constitution, applies.[7]
436.441. It is also the thesis of petitioner that since Manila Hotel is part of the
national patrimony and its business also unquestionably part of the national
economy petitioner should be preferred after it has matched the bid offer of the
Malaysian firm. For the bidding rules mandate that if for any reason, the Highest
Bidder cannot be awarded the Block of Shares, GSIS may offer this to the other
Qualified Bidders that have validly submitted bids provided that these Qualified
Bidders are willing to match the highest bid in terms of price per share. [8]
437.442. Respondents except. They maintain that: First, Sec. 10, second par., Art.
XII, of the 1987 Constitution is merely a statement of principle and policy since
it is not a self-executing provision and requires implementing legislation(s) x x x x
Thus, for the said provision to operate, there must be existing laws to lay down
conditions under which business may be done.[9]
438.443. Second, granting that this provision is self-executing, Manila Hotel does
not fall under the term national patrimony which only refers to lands of the public
domain, waters, minerals, coal, petroleum and other mineral oils, all forces of
potential energy, fisheries, forests or timber, wildlife, flora and fauna and all
marine wealth in its territorial sea, and exclusive marine zone as cited in the first
and second paragraphs of Sec. 2, Art. XII, 1987 Constitution. According to
respondents, while petitioner speaks of the guests who have slept in the hotel
and the events that have transpired therein which make the hotel historic, these
alone do not make the hotel fall under the patrimony of the nation. What is more,
the mandate of the Constitution is addressed to the State, not to respondent
GSIS which possesses a personality of its own separate and distinct from the
Philippines as a State.
439.444. Third, granting that the Manila Hotel forms part of the national patrimony,
the constitutional provision invoked is still inapplicable since what is being sold is
only 51% of the outstanding shares of the corporation, not the hotel building nor
the land upon which the building stands. Certainly, 51% of the equity of the MHC
cannot be considered part of the national patrimony. Moreover, if the disposition
of the shares of the MHC is really contrary to the Constitution, petitioner should
have questioned it right from the beginning and not after it had lost in the bidding.
440.445. Fourth, the reliance by petitioner on par. V., subpar. J. 1., of the bidding
rules which provides that if for any reason, the Highest Bidder cannot be
awarded the Block of Shares, GSIS may offer this to the other Qualified Bidders
that have validly submitted bids provided that these Qualified Bidders are willing
to match the highest bid in terms of price per share, is misplaced. Respondents
postulate that the privilege of submitting a matching bid has not yet arisen since it
only takes place if for any reason, the Highest Bidder cannot be awarded the
Block of Shares. Thus the submission by petitioner of a matching bid is
premature since Renong Berhad could still very well be awarded the block of
shares and the condition giving rise to the exercise of the privilege to submit a
matching bid had not yet taken place.
441.446. Finally, the prayer for prohibition grounded on grave abuse of discretion
should fail since respondent GSIS did not exercise its discretion in a capricious,
whimsical manner, and if ever it did abuse its discretion it was not so patent and
gross as to amount to an evasion of a positive duty or a virtual refusal to perform
a duty enjoined by law. Similarly, the petition for mandamus should fail as
petitioner has no clear legal right to what it demands and respondents do not
have an imperative duty to perform the act required of them by petitioner.
442.447. We now resolve. A constitution is a system of fundamental laws for the
governance and administration of a nation. It is supreme, imperious, absolute
and unalterable except by the authority from which it emanates. It has been
defined as the fundamental and paramount law of the nation.[10] It prescribes the
permanent framework of a system of government, assigns to the different
departments their respective powers and duties, and establishes certain fixed
principles on which government is founded. The fundamental conception in other
words is that it is a supreme law to which all other laws must conform and in
accordance with which all private rights must be determined and all public
authority administered.[11] Under the doctrine of constitutional supremacy, if a law
or contract violates any norm of the constitution that law or contract whether
promulgated by the legislative or by the executive branch or entered into by
private persons for private purposes is null and void and without any force and
effect. Thus, since the Constitution is the fundamental, paramount and supreme
law of the nation, it is deemed written in every statute and contract.
443.448. Admittedly, some constitutions are merely declarations of policies and
principles. Their provisions command the legislature to enact laws and carry out
the purposes of the framers who merely establish an outline of government
providing for the different departments of the governmental machinery and
securing certain fundamental and inalienable rights of citizens. [12] A provision
which lays down a general principle, such as those found in Art. II of the 1987
Constitution, is usually not self-executing. But a provision which is complete in
itself and becomes operative without the aid of supplementary or enabling
legislation, or that which supplies sufficient rule by means of which the right it
grants may be enjoyed or protected, is self-executing. Thus a constitutional
provision is self-executing if the nature and extent of the right conferred and the
liability imposed are fixed by the constitution itself, so that they can be
determined by an examination and construction of its terms, and there is no
language indicating that the subject is referred to the legislature for action.[13]
444.449. 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. [14] This
can be cataclysmic. That is why the prevailing view is, as it has always been, that
-
445.450. x x x x in case of doubt, the Constitution should be considered self-
executing rather than non-self-executing x x x x 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.[15]

446.451. Respondents argue that Sec. 10, second par., Art. XII, of the 1987
Constitution is clearly not self-executing, as they quote from discussions on the
floor of the 1986 Constitutional Commission -
447.452. MR. RODRIGO. Madam President, I am asking this question as the
Chairman of the Committee on Style. If the wording of PREFERENCE is given to
QUALIFIED FILIPINOS, can it be understood as a preference to qualified
Filipinos vis-a-visFilipinos who are not qualified. So, why do we not make it
clear? To qualified Filipinos as against aliens?
448.453. THE PRESIDENT. What is the question of Commissioner Rodrigo? Is it to
remove the word QUALIFIED?
449.454. MR. RODRIGO. No, no, but say definitely TO QUALIFIED FILIPINOS as
against whom? As against aliens or over aliens ?
450.455. MR. NOLLEDO. Madam President, I think that is understood. We use the
word QUALIFIED because the existing laws or prospective laws will always lay
down conditions under which business may be done. For example, qualifications on
capital, qualifications on the setting up of other financial structures, et
cetera (underscoring supplied by respondents).
451.456. MR. RODRIGO. It is just a matter of style.
452.457. MR. NOLLEDO. Yes.[16]
453.458. Quite apparently, Sec. 10, second par., of Art XII is couched in such a way
as not to make it appear that it is non-self-executing but simply for purposes of
style. But, certainly, the legislature is not precluded from enacting further laws to
enforce the constitutional provision so long as the contemplated statute squares
with the Constitution. Minor details may be left to the legislature without impairing
the self-executing nature of constitutional provisions.
454.459. In self-executing constitutional provisions, the legislature may still enact
legislation to facilitate the exercise of powers directly granted by the constitution,
further the operation of such a provision, prescribe a practice to be used for its
enforcement, provide a convenient remedy for the protection of the rights
secured or the determination thereof, or place reasonable safeguards around the
exercise of the right. The mere fact that legislation may supplement and add to or
prescribe a penalty for the violation of a self-executing constitutional provision
does not render such a provision ineffective in the absence of such
legislation. The omission from a constitution of any express provision for a
remedy for enforcing a right or liability is not necessarily an indication that it was
not intended to be self-executing. The rule is that a self-executing provision of the
constitution does not necessarily exhaust legislative power on the subject, but
any legislation must be in harmony with the constitution, further the exercise of
constitutional right and make it more available. [17] Subsequent legislation however
does not necessarily mean that the subject constitutional provision is not, by
itself, fully enforceable.
455.460. Respondents also argue that the non-self-executing nature of Sec. 10,
second par., of Art. XII is implied from the tenor of the first and third paragraphs
of the same section which undoubtedly are not self-executing.[18] The argument is
flawed. If the first and third paragraphs are not self-executing because Congress
is still to enact measures to encourage the formation and operation of enterprises
fully owned by Filipinos, as in the first paragraph, and the State still needs
legislation to regulate and exercise authority over foreign investments within its
national jurisdiction, as in the third paragraph, then a fortiori, by the same logic,
the second paragraph can only be self-executing as it does not by its language
require any legislation in order to give preference to qualified Filipinos in the
grant of rights, privileges and concessions covering the national economy and
patrimony.A constitutional provision may be self-executing in one part and non-
self-executing in another.[19]
456.461. Even the cases cited by respondents holding that certain constitutional
provisions are merely statements of principles and policies, which are basically
not self-executing and only placed in the Constitution as moral incentives to
legislation, not as judicially enforceable rights - are simply not in point. Basco v.
Philippine Amusements and Gaming Corporation[20] speaks of constitutional
provisions on personal dignity,[21] the sanctity of family life,[22] the vital role of the
youth in nation-building,[23] the promotion of social justice,[24] and the values of
education.[25] Tolentino v. Secretary of Finance[26] refers to constitutional provisions
on social justice and human rights[27] and on education.[28] Lastly, Kilosbayan, Inc.
v. Morato[29] cites provisions on the promotion of general welfare, [30] the sanctity of
family life,[31] the vital role of the youth in nation-building[32] and the promotion of
total human liberation and development.[33] A reading of these provisions indeed
clearly shows that they are not judicially enforceable constitutional rights but
merely guidelines for legislation. The very terms of the provisions manifest that
they are only principles upon which legislations must be based. Res ipsa loquitur.
457.462. On the other hand, Sec. 10, second par., Art. XII of the 1987 Constitution
is a mandatory, positive command which is complete in itself and which needs no
further guidelines or implementing laws or rules for its enforcement. From its very
words the provision does not require any legislation to put it in operation. It is per
se judicially enforceable. When our Constitution mandates that [i]n the grant of
rights, privileges, and concessions covering national economy and patrimony, the
State shall give preference to qualified Filipinos, it means just that - qualified
Filipinos shall be preferred. And when our Constitution declares that a right exists
in certain specified circumstances an action may be maintained to enforce such
right notwithstanding the absence of any legislation on the subject; consequently,
if there is no statute especially enacted to enforce such constitutional right, such
right enforces itself by its own inherent potency and puissance, and from which
all legislations must take their bearings. Where there is a right there is a
remedy. Ubi jus ibi remedium.
458.463. As regards our national patrimony, a member of the 1986 Constitutional
Commission[34] explains -
459.464. The patrimony of the Nation that should be conserved and developed
refers not only to our rich natural resources but also to the cultural heritage of
our race. It also refers to our intelligence in arts, sciences and letters. Therefore,
we should develop not only our lands, forests, mines and other natural
resources but also the mental ability or faculty of our people.
460.465. We agree. In its plain and ordinary meaning, the term patrimony pertains
to heritage.[35] When the Constitution speaks of national patrimony, it refers not
only to the natural resources of the Philippines, as the Constitution could have
very well used the term natural resources, but also to the cultural heritage of the
Filipinos.
461.466. Manila Hotel has become a landmark - a living testimonial of Philippine
heritage. While it was restrictively an American hotel when it first opened in 1912,
it immediately evolved to be truly Filipino. Formerly a concourse for the elite, it
has since then become the venue of various significant events which have
shaped Philippine history. It was called the Cultural Center of the 1930s. It was
the site of the festivities during the inauguration of the Philippine
Commonwealth. Dubbed as the Official Guest House of the Philippine
Government it plays host to dignitaries and official visitors who are accorded the
traditional Philippine hospitality.[36]
462.467. The history of the hotel has been chronicled in the book The Manila Hotel:
The Heart and Memory of a City.[37] During World War II the hotel was converted
by the Japanese Military Administration into a military headquarters. When the
American forces returned to recapture Manila the hotel was selected by the
Japanese together with Intramuros as the two (2) places for their final
stand. Thereafter, in the 1950s and 1960s, the hotel became the center of
political activities, playing host to almost every political convention. In 1970 the
hotel reopened after a renovation and reaped numerous international
recognitions, an acknowledgment of the Filipino talent and ingenuity. In 1986 the
hotel was the site of a failed coup d etat where an aspirant for vice-president was
proclaimed President of the Philippine Republic.
463.468. For more than eight (8) decades Manila Hotel has bore mute witness to
the triumphs and failures, loves and frustrations of the Filipinos; its existence is
impressed with public interest; its own historicity associated with our struggle for
sovereignty, independence and nationhood. Verily, Manila Hotel has become
part of our national economy and patrimony. For sure, 51% of the equity of the
MHC comes within the purview of the constitutional shelter for it comprises the
majority and controlling stock, so that anyone who acquires or owns the 51% will
have actual control and management of the hotel. In this instance, 51% of the
MHC cannot be disassociated from the hotel and the land on which the hotel
edifice stands. Consequently, we cannot sustain respondents claim that
the Filipino First Policy provision is not applicable since what is being sold is only
51% of the outstanding shares of the corporation, not the Hotel building nor the
land upon which the building stands.[38]
464.469. The argument is pure sophistry. The term qualified Filipinos as used in our
Constitution also includes corporations at least 60% of which is owned by
Filipinos. This is very clear from the proceedings of the 1986 Constitutional
Commission -
465.470. THE PRESIDENT. Commissioner Davide is recognized.
466.471. MR. DAVIDE. I would like to introduce an amendment to the Nolledo
amendment. And the amendment would consist in substituting the words
QUALIFIED FILIPINOS with the following: CITIZENS OF THE PHILIPPINES OR
CORPORATIONS OR ASSOCIATIONS WHOSE CAPITAL OR CONTROLLING
STOCK IS WHOLLY OWNED BY SUCH CITIZENS.
467.472. x x x x
468.473. MR. MONSOD. Madam President, apparently the proponent is agreeable,
but we have to raise a question. Suppose it is a corporation that is 80-percent
Filipino, do we not give it preference?
469.474. MR. DAVIDE. The Nolledo amendment would refer to an individual
Filipino. What about a corporation wholly owned by Filipino citizens?
470.475. MR. MONSOD. At least 60 percent, Madam President.
471.476. MR. DAVIDE. Is that the intention?
472.477. MR. MONSOD. Yes, because, in fact, we would be limiting it if we say that
the preference should only be 100-percent Filipino.
473.478. MR. DAVIDE. I want to get that meaning clear because QUALIFIED
FILIPINOS may refer only to individuals and not to juridical personalities or entities.
474.479. MR. MONSOD. We agree, Madam President.[39]
475.480. x x x x
476.481. MR. RODRIGO. Before we vote, may I request that the amendment be read
again.
477.482. MR. NOLLEDO. The amendment will read: IN THE GRANT OF RIGHTS,
PRIVILEGES AND CONCESSIONS COVERING THE NATIONAL ECONOMY AND
PATRIMONY, THE STATE SHALL GIVE PREFERENCE TO QUALIFIED
FILIPINOS. And the word Filipinos here, as intended by the proponents, will include
not only individual Filipinos but also Filipino-controlled entities or entities fully-
controlled by Filipinos.[40]
478.483. The phrase preference to qualified Filipinos was explained thus -
479.484. MR. FOZ. Madam President, I would like to request Commissioner Nolledo
to please restate his amendment so that I can ask a question.
480.485. MR. NOLLEDO. IN THE GRANT OF RIGHTS, PRIVILEGES AND
CONCESSIONS COVERING THE NATIONAL ECONOMY AND PATRIMONY, THE
STATE SHALL GIVE PREFERENCE TO QUALIFIED FILIPINOS.
481.486. MR. FOZ. In connection with that amendment, if a foreign enterprise is
qualified and a Filipino enterprise is also qualified, will the Filipino enterprise still be
given a preference?
482.487. MR. NOLLEDO. Obviously.
483.488. MR. FOZ. If the foreigner is more qualified in some aspects than the Filipino
enterprise, will the Filipino still be preferred?
484.489. MR. NOLLEDO. The answer is yes.
485.490. MR. FOZ. Thank you.[41]
486.491. Expounding further on the Filipino First Policy provision Commissioner
Nolledo continues
487.492. MR. NOLLEDO. Yes, Madam President. Instead of MUST, it will be SHALL -
THE STATE SHALL GIVE PREFERENCE TO QUALIFIED FILIPINOS. This
embodies the so-called Filipino First policy. That means that Filipinos should be
given preference in the grant of concessions, privileges and rights covering the
national patrimony.[42]
488.493. The exchange of views in the sessions of the Constitutional Commission
regarding the subject provision was still further clarified by Commissioner
Nolledo[43] -
489.494. Paragraph 2 of Section 10 explicitly mandates the Pro-Filipino bias in all
economic concerns. It is better known as the FILIPINO FIRST Policy x x x
x This provision was never found in previous Constitutions x x x x
490.495. The term qualified Filipinos simply means that preference shall be given
to those citizens who can make a viable contribution to the common good,
because of credible competence and efficiency. It certainly does NOT mandate
the pampering and preferential treatment to Filipino citizens or organizations
that are incompetent or inefficient, since such an indiscriminate preference
would be counterproductive and inimical to the common good.
491.496. In the granting of economic rights, privileges, and concessions, when a
choice has to be made between a qualified foreigner and a qualified Filipino,
the latter shall be chosen over the former.
492.497. Lastly, the word qualified is also determinable. Petitioner was so
considered by respondent GSIS and selected as one of the qualified bidders. It
was pre-qualified by respondent GSIS in accordance with its own guidelines so
that the sole inference here is that petitioner has been found to be possessed of
proven management expertise in the hotel industry, or it has significant equity
ownership in another hotel company, or it has an overall management and
marketing proficiency to successfully operate the Manila Hotel.[44]
493.498. The penchant to try to whittle away the mandate of the Constitution by
arguing that the subject provision is not self-executory and requires implementing
legislation is quite disturbing. The attempt to violate a clear constitutional
provision - by the government itself - is only too distressing. To adopt such a line
of reasoning is to renounce the duty to ensure faithfulness to the
Constitution. For, even some of the provisions of the Constitution which evidently
need implementing legislation have juridical life of their own and can be the
source of a judicial remedy. We cannot simply afford the government a defense
that arises out of the failure to enact further enabling, implementing or guiding
legislation. In fine, the discourse of Fr. Joaquin G. Bernas, S.J., on constitutional
government is apt -
494.499. The executive department has a constitutional duty to implement laws,
including the Constitution, even before Congress acts - provided that there are
discoverable legal standards for executive action. When the executive acts, it
must be guided by its own understanding of the constitutional command and of
applicable laws. The responsibility for reading and understanding the
Constitution and the laws is not the sole prerogative of Congress. If it were, the
executive would have to ask Congress, or perhaps the Court, for an
interpretation every time the executive is confronted by a constitutional
command. That is not how constitutional government operates. [45]

495.500. Respondents further argue that the constitutional provision is addressed to


the State, not to respondent GSIS which by itself possesses a separate and
distinct personality. This argument again is at best specious. It is undisputed that
the sale of 51% of the MHC could only be carried out with the prior approval of
the State acting through respondent Committee on Privatization. As correctly
pointed out by Fr. Joaquin G. Bernas, S.J., this fact alone makes the sale of the
assets of respondents GSIS and MHC a state action. In constitutional
jurisprudence, the acts of persons distinct from the government are
considered state action covered by the Constitution (1) when the activity it
engages in is a public function; (2) when the government is so significantly
involved with the private actor as to make the government responsible for his
action; and, (3) when the government has approved or authorized the action. It is
evident that the act of respondent GSIS in selling 51% of its share in respondent
MHC comes under the second and third categories of state action. Without doubt
therefore the transaction, although entered into by respondent GSIS, is in fact a
transaction of the State and therefore subject to the constitutional command. [46]
496.501. When the Constitution addresses the State it refers not only to the people
but also to the government as elements of the State. After all, government is
composed of three (3) divisions of power - legislative, executive and
judicial. Accordingly, a constitutional mandate directed to the State is
correspondingly directed to the three (3) branches of government. It is
undeniable that in this case the subject constitutional injunction is addressed
among others to the Executive Department and respondent GSIS, a government
instrumentality deriving its authority from the State.
497.502. It should be stressed that while the Malaysian firm offered the higher bid it
is not yet the winning bidder. The bidding rules expressly provide that the highest
bidder shall only be declared the winning bidder after it has negotiated and
executed the necessary contracts, and secured the requisite approvals. Since
the Filipino First Policy provision of the Constitution bestows preference
on qualified Filipinos the mere tending of the highest bid is not an assurance that
the highest bidder will be declared the winning bidder. Resultantly, respondents
are not bound to make the award yet, nor are they under obligation to enter into
one with the highest bidder. For in choosing the awardee respondents are
mandated to abide by the dictates of the 1987 Constitution the provisions of
which are presumed to be known to all the bidders and other interested parties.
498.503. Adhering to the doctrine of constitutional supremacy, the subject
constitutional provision is, as it should be, impliedly written in the bidding rules
issued by respondent GSIS, lest the bidding rules be nullified for being violative
of the Constitution. It is a basic principle in constitutional law that all laws and
contracts must conform with the fundamental law of the land. Those which violate
the Constitution lose their reason for being.
499.504. Paragraph V. J. 1 of the bidding rules provides that [i]f for any reason the
Highest Bidder cannot be awarded the Block of Shares, GSIS may offer this to
other Qualified Bidders that have validly submitted bids provided that these
Qualified Bidders are willing to match the highest bid in terms of price per
share.[47] Certainly, the constitutional mandate itself is reason enough not to award
the block of shares immediately to the foreign bidder notwithstanding its
submission of a higher, or even the highest, bid. In fact, we cannot conceive of
a stronger reason than the constitutional injunction itself.
500.505. In the instant case, where a foreign firm submits the highest bid in a public
bidding concerning the grant of rights, privileges and concessions covering the
national economy and patrimony, thereby exceeding the bid of a Filipino, there is
no question that the Filipino will have to be allowed to match the bid of the
foreign entity. And if the Filipino matches the bid of a foreign firm the award
should go to the Filipino. It must be so if we are to give life and meaning to
the Filipino First Policy provision of the 1987 Constitution. For, while this may
neither be expressly stated nor contemplated in the bidding rules, the
constitutional fiat is omnipresent to be simply disregarded. To ignore it would be
to sanction a perilous skirting of the basic law.
501.506. This Court does not discount the apprehension that this policy may
discourage foreign investors. But the Constitution and laws of the Philippines are
understood to be always open to public scrutiny. These are given factors which
investors must consider when venturing into business in a foreign
jurisdiction. Any person therefore desiring to do business in the Philippines or
with any of its agencies or instrumentalities is presumed to know his rights and
obligations under the Constitution and the laws of the forum.
502.507. The argument of respondents that petitioner is now estopped from
questioning the sale to Renong Berhad since petitioner was well aware from the
beginning that a foreigner could participate in the bidding is
meritless. Undoubtedly, Filipinos and foreigners alike were invited to the
bidding. But foreigners may be awarded the sale only if no Filipino qualifies, or if
the qualified Filipino fails to match the highest bid tendered by the foreign
entity. In the case before us, while petitioner was already preferred at the
inception of the bidding because of the constitutional mandate, petitioner had not
yet matched the bid offered by Renong Berhad. Thus it did not have the right or
personality then to compel respondent GSIS to accept its earlier bid.Rightly, only
after it had matched the bid of the foreign firm and the apparent disregard by
respondent GSIS of petitioners matching bid did the latter have a cause of action.
503.508. Besides, there is no time frame for invoking the constitutional safeguard
unless perhaps the award has been finally made.To insist on selling the Manila
Hotel to foreigners when there is a Filipino group willing to match the bid of the
foreign group is to insist that government be treated as any other ordinary market
player, and bound by its mistakes or gross errors of judgment, regardless of the
consequences to the Filipino people. The miscomprehension of the Constitution
is regrettable.Thus we would rather remedy the indiscretion while there is still an
opportunity to do so than let the government develop the habit of forgetting that
the Constitution lays down the basic conditions and parameters for its actions.
504.509. Since petitioner has already matched the bid price tendered by Renong
Berhad pursuant to the bidding rules, respondent GSIS is left with no alternative
but to award to petitioner the block of shares of MHC and to execute the
necessary agreements and documents to effect the sale in accordance not only
with the bidding guidelines and procedures but with the Constitution as well. The
refusal of respondent GSIS to execute the corresponding documents with
petitioner as provided in the bidding rules after the latter has matched the bid of
the Malaysian firm clearly constitutes grave abuse of discretion.
505.510. The Filipino First Policy is a product of Philippine nationalism. It is
embodied in the 1987 Constitution not merely to be used as a guideline for future
legislation but primarily to be enforced; so must it be enforced. This Court as the
ultimate guardian of the Constitution will never shun, under any reasonable
circumstance, the duty of upholding the majesty of the Constitution which it is
tasked to defend. It is worth emphasizing that it is not the intention of this Court
to impede and diminish, much less undermine, the influx of foreign
investments. Far from it, the Court encourages and welcomes more business
opportunities but avowedly sanctions the preference for Filipinos whenever such
preference is ordained by the Constitution. The position of the Court on this
matter could have not been more appropriately articulated by Chief Justice
Narvasa -
506.511. As scrupulously as it has tried to observe that it is not its function to
substitute its judgment for that of the legislature or the executive about the
wisdom and feasibility of legislation economic in nature, the Supreme Court
has not been spared criticism for decisions perceived as obstacles to economic
progress and development x x x x in connection with a temporary injunction
issued by the Courts First Division against the sale of the Manila Hotel to a
Malaysian Firm and its partner, certain statements were published in a major
daily to the effect that that injunction again demonstrates that the Philippine
legal system can be a major obstacle to doing business here.
507.512. Let it be stated for the record once again that while it is no business of
the Court to intervene in contracts of the kind referred to or set itself up as the
judge of whether they are viable or attainable, it is its bounden duty to make
sure that they do not violate the Constitution or the laws, or are not adopted or
implemented with grave abuse of discretion amounting to lack or excess of
jurisdiction. It will never shirk that duty, no matter how buffeted by winds of
unfair and ill-informed criticism. [48]

508.513. Privatization of a business asset for purposes of enhancing its business


viability and preventing further losses, regardless of the character of the asset,
should not take precedence over non-material values. A commercial, nay even a
budgetary, objective should not be pursued at the expense of national pride and
dignity. For the Constitution enshrines higher and nobler non-material
values. Indeed, the Court will always defer to the Constitution in the proper
governance of a free society; after all, there is nothing so sacrosanct in any
economic policy as to draw itself beyond judicial review when the Constitution is
involved.[49]
509.514. Nationalism is inherent in the very concept of the Philippines being a
democratic and republican state, with sovereignty residing in the Filipino people
and from whom all government authority emanates. In nationalism, the
happiness and welfare of the people must be the goal. The nation-state can have
no higher purpose. Any interpretation of any constitutional provision must adhere
to such basic concept. Protection of foreign investments, while laudible, is merely
a policy. It cannot override the demands of nationalism.[50]
510.515. The Manila Hotel or, for that matter, 51% of the MHC, is not just any
commodity to be sold to the highest bidder solely for the sake of privatization. We
are not talking about an ordinary piece of property in a commercial district. We
are talking about a historic relic that has hosted many of the most important
events in the short history of the Philippines as a nation. We are talking about a
hotel where heads of states would prefer to be housed as a strong manifestation
of their desire to cloak the dignity of the highest state function to their official
visits to the Philippines. Thus the Manila Hotel has played and continues to play
a significant role as an authentic repository of twentieth century Philippine history
and culture. In this sense, it has become truly a reflection of the Filipino soul - a
place with a history of grandeur; a most historical setting that has played a part in
the shaping of a country.[51]
511.516. This Court cannot extract rhyme nor reason from the determined efforts of
respondents to sell the historical landmark - this Grand Old Dame of hotels in
Asia - to a total stranger. For, indeed, the conveyance of this epic exponent of
the Filipino psyche to alien hands cannot be less than mephistophelian for it is, in
whatever manner viewed, a veritable alienation of a nations soul for some pieces
of foreign silver. And so we ask: What advantage, which cannot be equally drawn
from a qualified Filipino, can be gained by the Filipinos if Manila Hotel - and all
that it stands for - is sold to a non-Filipino? How much of national pride will
vanish if the nations cultural heritage is entrusted to a foreign entity? On the
other hand, how much dignity will be preserved and realized if the national
patrimony is safekept in the hands of a qualified, zealous and well-meaning
Filipino? This is the plain and simple meaning of the Filipino First Policy provision
of the Philippine Constitution. And this Court, heeding the clarion call of the
Constitution and accepting the duty of being the elderly watchman of the nation,
will continue to respect and protect the sanctity of the Constitution.
512.517. WHEREFORE, respondents GOVERNMENT SERVICE INSURANCE
SYSTEM, MANILA HOTEL CORPORATION, COMMITTEE ON PRIVATIZATION
and OFFICE OF THE GOVERNMENT CORPORATE COUNSEL are directed to
CEASE and DESIST from selling 51% of the shares of the Manila Hotel
Corporation to RENONG BERHAD, and to ACCEPT the matching bid of
petitioner MANILA PRINCE HOTEL CORPORATION to purchase the subject
51% of the shares of the Manila Hotel Corporation at P44.00 per share and
thereafter to execute the necessary agreements and documents to effect the
sale, to issue the necessary clearances and to do such other acts and deeds as
may be necessary for the purpose.
513.518. SO ORDERED.
514.519. Regalado, Davide, Jr., Romero, Kapunan, Francisco, and Hermosisima,
Jr., JJ, concur.
515.520. Narvasa, C.J., (Chairman), and Melo, J., joins J. Puno in his dissent.
516.521. Padilla, J., see concurring opinion.
517.522. Vitug, J., see separate concurring opinion
518.523. Mendoza, J., see concurring opinion
519.524. Torres, J., with separate opinion
520.525. Puno, J., see dissent.
521.526. Panganiban J., with separate dissenting opinion.
522.527.

523.528.
524.529. [1]
See Sec. 10, par. 2, Art. XII, 1987 Constitution.
525.530. [2]
Par. I. Introduction and Highlights, Guidelines and Procedures: Second
Prequalifications and Public Bidding of the MHC Privatization; Annex A, Consolidated Reply to
Comments of Respondents; Rollo, p.142.
526.531. [3]
Par. V. Guidelines for the Public Bidding, Id., pp. 153-154.
527.532. [4]
Annex A, Petition for Prohibition and Mandamus with Temporary Restraining
Order; Rollo, pp.13-14.
528.533. [5]
Annex B, Petition for Prohibition and Mandamus with Temporary Restraining Order; Id.,
p.15.
529.534. [6]
Petition for Prohibition and Mandamus with Temporary Restraining Order, pp. 5-6; Id.,
pp.6-7.
530.535. [7]
Consolidated Reply to Comments of Respondents, p. 17; Id., p.133.
531.536. [8]
Par. V. J. 1,Guidelines for Public Bidding, Guidelines and Procedures: Second
Prequalifications and Public Bidding of the MHC Privatization, Annex A, Consolidated Reply to
Comments of Respondents; Id., p. 154.
532.537. [9]
Respondents Joint Comment with Urgent Motion to Lift Temporary Restraining Order,
p.9; Rollo, p. 44.
533.538. [10]
Marbury v. Madison, 5 U.S. 138 (1803).
534.539. [11]
11 Am Jur. 606.
535.540. [12]
16 Am Jur. 2d 281.
536.541. [13]
Id., p. 282.
537.542. [14]
See Note 12.
538.543. [15]
Cruz, Isagani A., Constitutional Law, 1993 ed., pp. 8-10.
539.544. [16]
Record of the Constitutional Commission, Vol. 3, 22 August 1986, p. 608.
540.545. [17]
16 Am Jur 2d 283-284.
541.546. [18] Sec. 10, first par., reads: The Congress shall, upon recommendation of the economic
and planning agency, when the national interest dictates, reserve to citizens of the Philippines or
to corporations or associations at least sixty per centum of whose capital is owned by such
citizens, or such higher percentage as Congress may prescribe, certain areas of
investments. The Congress shall enact measures that will encourage the formation and operation
of enterprises whose capital is wholly owned by Filipinos.
542.547. Sec. 10, third par., reads: The State shall regulate and exercise authority over foreign
investments within its national jurisdiction and in accordance with its national goals and priorities.
543.548. [19]
State ex rel. Miller v. OMalley, 342 Mo 641, 117 SW2d 319.
544.549. [20]
G.R. No. 91649, 14 May 1991, 197 SCRA 52.
545.550. [21]
Sec. 11, Art. II (Declaration of Principles and State Policies), provides that [t]he State
values the dignity of every human person and guarantees full respect for human rights.
546.551. [22]
Sec. 12, Art. II, provides that [t]he State recognizes the sanctity of family life and shall
protect and strengthen the family as a basic autonomous social institution. It shall equally protect
the life of the mother and the life of the unborn from conception. The natural and primary right and
duty of parents in the rearing of the youth for civic efficiency and the development of moral
character shall receive the support of the government.
547.552. [23]
Sec. 13, Art. II, provides that [t]he State recognizes the vital role of the youth in nation-
building and shall promote and protect their physical, moral, spiritual, intellectual, and social well-
being. It shall inculcate in the youth patriotism and nationalism, and encourage their involvement
in public and civic affairs.
548.553. [24] Sec. 1, Art. XIII (Social Justice and Human Rights), provides that [t]he Congress shall
give highest priority to the enactment of measures that protect and enhance the right of all the
people to human dignity, reduce social, economic and political inequalities, and remove cultural
inequities by equitably diffusing wealth and political power for the common good.
549.554. To this end, the State shall regulate the acquisition, ownership, use, and disposition of
property and its increments.
550.555. Sec. 2, Art. XIII, provides that [t]he promotion of social justice shall include the
commitment to create economic opportunities based on freedom of initiative and self-reliance.
551.556. [25] Sec. 2, Art. XIV (Education, Science and Technology, Arts, Culture, and Sports),
provides that [t]he State shall:
552.557. (1) Establish, maintain, and support a complete, adequate, and integrated system of
education relevant to the needs of the people and society;
553.558. (2) Establish and maintain a system of free public education in the elementary and high
school levels. Without limiting the natural right of parents to rear their children, elementary
education is compulsory for all children of school age;
554.559. (3) Establish and maintain a system of scholarship grants, student loan programs,
subsidies, and other incentives which shall be available to deserving students in both public and
private schools, especially to the underprivileged;
555.560. (4) Encourage non-formal, informal, and indigenous learning, independent, and out-of-
school study programs particularly those that respond to community needs; and
556.561. (5) Provide adult citizens, the disabled, and out-of-school youth with training in civics,
vocational efficiency, and other skills.
557.562. [26]
G.R. No. 115455, 25 August 1994, 235 SCRA 630.
558.563. [27]
See Note 25.
559.564. [28]
Sec. 1, Art. XIV, provides that [t]he State shall protect and promote the right of all
citizens to quality education at all levels of education and shall take appropriate steps to make
such education accessible to all.
560.565. [29]
G.R. No. 118910, 17 July 1995.
561.566. [30]
Sec. 5, Art. II (Declaration of Principles and State Policies), provides that [t]he
maintenance of peace and order, the protection of life, liberty, and property, and the promotion of
the general welfare are essential for the enjoyment by all the people of the blessings of
democracy.
562.567. [31]
See Note 23.
563.568. [32]
See Note 24.
564.569. [33]
Sec. 17, Art. II, provides that [t]he State shall give priority to education, science and
technology, arts, culture, and sports to foster patriotism and nationalism, accelerate social
progress, and promote total human liberation and development.
565.570. [34]
Nolledo, Jose N., The New Constitution of the Philippines Annotated, 1990 ed., p. 72.
566.571. [35]
Websters Third New International Dictionary, 1986 ed., p. 1656.
567.572. [36]
The guest list of the Manila Hotel includes Gen. Douglas MacArthur, the Duke of
Windsor, President Richard Nixon of U.S.A., Emperor Akihito of Japan, President Dwight
Eisenhower of U.S.A, President Nguyen Van Thieu of Vietnam, President Park Chung Hee of
Korea, Prime Minister Richard Holt of Australia, Prime Minister Keith Holyoake of New Zealand,
President Lyndon Johnson of U.S.A., President Jose Lopez Portillo of Mexico, Princess Margaret
of England, Prime Minister Malcolm Fraser of Australia, Prime Minister Yasuhiro Nakasone of
Japan, Prime Minister Pierre Elliot Trudeau of Canada, President Raul Alfonsin of Argentina,
President Felipe Gonzalez of Spain, Prime Minister Noboru Takeshita of Japan, Prime Minister
Hussain Muhammad Ershad of Bangladesh, Prime Minister Bob Hawke of Australia, Prime
Minister Yasuhiro Nakasone of Japan, Premier Li Peng of China, Sultan Hassanal Bolkiah of
Brunei, President Ramaswami Venkataraman of India, Prime Minister Go Chok Tong of
Singapore, Prime Minister Enrique Silva Cimma of Chile, Princess Chulaborn and Mahacharri
Sirindhorn of Thailand, Prime Minister Tomiichi Murayama of Japan, Sultan Azlan Shah and Raja
Permaisuri Agong of Malaysia, President Kim Young Sam of Korea, Princess Infanta Elena of
Spain, President William Clinton of U.S.A., Prime Minister Mahathir Mohamad of Malaysia, King
Juan Carlos I and Queen Sofia of Spain, President Carlos Saul Menem of Argentina, Prime
Ministers Chatichai Choonhavan and Prem Tinsulanonda of Thailand, Prime Minister Benazir
Bhutto of Pakistan, President Vaclav Havel of Czech Republic, Gen. Norman Schwarzkopf of
U.S.A., President Ernesto Perez Balladares of Panama, Prime Minister Adolfas Slezevicius of
Lithuania, President Akbar Hashemi Rafsanjani of Iran, President Askar Akayev of Kyrgyztan,
President Ong Teng Cheong of Singapore, President Frei Ruiz Tagle of Chile, President Le Duc
Anh of Vietnam, and Prime Minister Julius Chan of Papua New Guinea, see Memorandum for
Petitioner, pp. 16-19.
568.573. [37]
Authored by Beth Day Romulo.
569.574. [38]
See Note 9, pp.15-16; Rollo, pp. 50-51.
570.575. [39]
Record of the Constitutional Commission, Vol. 3, 22 August 1986, p. 607.
571.576. [40]
Id., p. 612.
572.577. [41]
Id., p. 616.
573.578. [42]
Id., p. 606.
574.579. [43]
Nolledo, J.N., The New Constitution of the Philippines Annotated, 1990 ed., pp.930-
931.
575.580. [44]
Bidders were required to have at least one of the these qualifications to be able to
participate in the bidding process; see Note 2.
576.581. [45]
Memorandum of Fr. Joaquin G. Bernas, S.J., p.6.
577.582. [46]
Id., pp. 3-4.
578.583. [47]
See Note 8.
579.584. [48]
Keynote Address at the ASEAN Regional Symposium on Enforcement of Industrial
Property Rights held 23 October 1995 at New World Hotel, Makati City.
580.585. [49]
Speech of Senior Associate Justice Teodoro R. Padilla at the Induction of Officers and
Directors of the PHILCONSA for 1996 held 16 January 1996 at the Sky-Top, Hotel
Intercontinental, Makati City.
581.586. [50]
Memorandum of Authorities submitted by former Chief Justice Enrique M. Fernando,
p.5.
582.587. [51]
8 March 1996 issue of Philippine Daily Inquirer, p. B13.

Manila Prince Hotel vs GSIS


Self Executing Statutes

MANILA PRINCE HOTEL VS. GSIS


G.R. NO. 122156. February 3, 1997
MANILA PRINCE HOTEL petitioner,
vs.
GOVERNMENT SERVICE INSURANCE SYSTEM, MANILA HOTEL CORPORATION, COMMITTEE
ON PRIVATIZATION and OFFICE OF THE GOVERNMENT CORPORATE COUNSEL, respondents.

Facts:
The controversy arose when respondent Government Service Insurance System (GSIS), pursuant to the
privatization program of the Philippine Government, decided to sell through public bidding 30% to 51% of the
issued and outstanding shares of respondent Manila Hotel Corporation (MHC). The winning bidder, or the
eventual strategic partner, will provide management expertise or an international marketing/reservation
system, and financial support to strengthen the profitability and performance of the Manila Hotel.
In a close bidding held on 18 September 1995 only two (2) bidders participated: petitioner Manila Prince Hotel
Corporation, a Filipino corporation, which offered to buy 51% of the MHC or 15,300,000 shares at P41.58 per
share, and Renong Berhad, a Malaysian firm, with ITT-Sheraton as its hotel operator, which bid for the same
number of shares at P44.00 per share, or P2.42 more than the bid of petitioner. Prior to the declaration of
Renong Berhard as the winning bidder, petitioner Manila Prince Hotel matched the bid price and sent a
managers check as bid security, which GSIS refused to accept.
Apprehensive that GSIS has disregarded the tender of the matching bid and that the sale may be consummated
with Renong Berhad, petitioner filed a petition before the Court.

Issues:
1. Whether or not Sec. 10, second par., Art. XII, of the 1987 Constitution is a self-executing provision.
2. Whether or not the Manila Hotel forms part of the national patrimony.
3. Whether or not the submission of matching bid is premature
4. Whether or not there was grave abuse of discretion on the part of the respondents in refusing the matching
bid of the petitioner.

Rulings:
In the resolution of the case, the Court held that:

1. It is a self-executing provision.
1. Since the Constitution is the fundamental, paramount and supreme law of the nation, it is deemed
written in every statute and contract. A provision which lays down a general principle, such as those
found in Art. II of the 1987 Constitution, is usually not self-executing. But a provision which is
complete in itself and becomes operative without the aid of supplementary or enabling legislation, or
that which supplies sufficient rule by means of which the right it grants may be enjoyed or protected,
is self-executing.
2. A constitutional provision is self-executing if the nature and extent of the right conferred and the
liability imposed are fixed by the constitution itself, so that they can be determined by an examination
and construction of its terms, and there is no language indicating that the subject is referred to the
legislature for action. 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.
3. 10, second par., Art. XII of the 1987 Constitution is a mandatory, positive command which is
complete in itself and which needs no further guidelines or implementing laws or rules for its
enforcement. From its very words the provision does not require any legislation to put it in operation.
It is per se judicially enforceable. When our Constitution mandates that in the grant of rights,
privileges, and concessions covering national economy and patrimony, the State shall give preference
to qualified Filipinos, it means just that qualified Filipinos shall be preferred. And when our
Constitution declares that a right exists in certain specified circumstances an action may be
maintained to enforce such right notwithstanding the absence of any legislation on the subject;
consequently, if there is no statute especially enacted to enforce such constitutional right, such right
enforces itself by its own inherent potency and puissance, and from which all legislations must take
their bearings. Where there is a right there is a remedy. Ubi jus ibi remedium.
1.2. The Court agree.
1. In its plain and ordinary meaning, the term patrimony pertains to heritage. When the Constitution
speaks of national patrimony, it refers not only to the natural resources of the Philippines, as the
Constitution could have very well used the term natural resources, but also to the cultural heritage of
the Filipinos.
2. It also refers to Filipinos intelligence in arts, sciences and letters. In the present case, Manila Hotel
has become a landmark, a living testimonial of Philippine heritage. While it was restrictively an
American hotel when it first opened in 1912, a concourse for the elite, it has since then become the
venue of various significant events which have shaped Philippine history.
3. Verily, Manila Hotel has become part of our national economy and patrimony. For sure, 51% of the
equity of the MHC comes within the purview of the constitutional shelter for it comprises the majority
and controlling stock, so that anyone who acquires or owns the 51% will have actual control and
management of the hotel. In this instance, 51% of the MHC cannot be disassociated from the hotel
and the land on which the hotel edifice stands.
3. It is not premature.
1. In the instant case, where a foreign firm submits the highest bid in a public bidding concerning the
grant of rights, privileges and concessions covering the national economy and patrimony, thereby
exceeding the bid of a Filipino, there is no question that the Filipino will have to be allowed to match
the bid of the foreign entity. And if the Filipino matches the bid of a foreign firm the award should go
to the Filipino. It must be so if the Court is to give life and meaning to the Filipino First Policy
provision of the 1987 Constitution. For, while this may neither be expressly stated nor contemplated
in the bidding rules, the constitutional fiat is omnipresent to be simply disregarded. To ignore it would
be to sanction a perilous skirting of the basic law.
2. The Court does not discount the apprehension that this policy may discourage foreign investors. But
the Constitution and laws of the Philippines are understood to be always open to public scrutiny.
These are given factors which investors must consider when venturing into business in a foreign
jurisdiction. Any person therefore desiring to do business in the Philippines or with any of its agencies
or instrumentalities is presumed to know his rights and obligations under the Constitution and the
laws of the forum.
4. There was grave abuse of discretion.
1. To insist on selling the Manila Hotel to foreigners when there is a Filipino group willing to match the
bid of the foreign group is to insist that government be treated as any other ordinary market player,
and bound by its mistakes or gross errors of judgement, regardless of the consequences to the Filipino
people. The miscomprehension of the Constitution is regrettable. Thus, the Court would rather
remedy the indiscretion while there is still an opportunity to do so than let the government develop the
habit of forgetting that the Constitution lays down the basic conditions and parameters for its actions.
2. Since petitioner has already matched the bid price tendered by Renong Berhad pursuant to the bidding
rules, respondent GSIS is left with no alternative but to award to petitioner the block of shares of
MHC and to execute the necessary agreements and documents to effect the sale in accordance not
only with the bidding guidelines and procedures but with the Constitution as well. The refusal of
respondent GSIS to execute the corresponding documents with petitioner as provided in the bidding
rules after the latter has matched the bid of the Malaysian firm clearly constitutes grave abuse of
discretion.

Hence, respondents GOVERNMENT SERVICE INSURANCE SYSTEM, MANILA HOTEL


CORPORATION, COMMITTEE ON PRIVATIZATION and OFFICE OF THE GOVERNMENT
CORPORATE COUNSEL are directed to CEASE and DESIST from selling 51% of the shares of the Manila
Hotel Corporation to RENONG BERHAD, and to ACCEPT the matching bid of petitioner MANILA PRINCE
HOTEL CORPORATION to purchase the subject 51% of the shares of the Manila Hotel Corporation
at P44.00 per share and thereafter to execute the necessary agreements and documents to effect the sale, to
issue the necessary clearances and to do such other acts and deeds as may be necessary for the purpose.

Republic of the Philippines


SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 100588 March 7, 1994

UNIVERSITY OF SAN AGUSTIN, INC., SISTER CONCEPCION CAJILIG, NENALYN ABIODA,


MARY ESPINO, RHODORA AZUCENA, MA. DULCE SOCORRO POSA and COSETTE
MONTEBLANCO, petitioners,
vs.
COURT OF APPEALS, ANTONIO H. LARA, EDUARDO MAGANTE, JOSE SANCHO,
REYNALDA F. SO and WINNEFRIDA C. VALENZUELA, as parents/guardians of Antonio Marco
Ho, Ma. Elanie Magante, Roy D. Sancho, Michael Kim So and Bernardina Cainoy, respondents.

Tirol & Tirol for petitioner.s

Nilo S. Sampiano for private respondents.

NOCON, J.:

The present case involves third year Nursing students who failed to meet the retention policy of the
school, that is, minimum grade of 80% in any major Nursing subject and in two minor subjects. As a
consequence, the school refused to re-admit them. In view of the rights granted to students by the
provisions of Section IV, paragraph 107 of the Manual of Regulations for Private Schools, Section
9(2) of Batas Pambansa Blg. 232 and Article XIV, Section 5(3) of the 1987 Constitution, may they
compel the school to allow them to complete their course?

The antecedent facts are undisputed:


Private respondents Antonio Marco Ho, Ma. Elaine Magante, Roy D. Sancho, Michael Kim So and
Bernardita Cainoy were third year Nursing students of petitioner University of San Agustin (USA)
who were refused re-admission in the summer classes of 1989 and last two semesters of school
year 1989-1990 on the alleged ground that they failed to obtain grades of not lower than 80% in
Nursing 104 (Nursing Practice II with Related Learning Experience). Its persistent refusal to re-admit
them prejudiced their right to freely choose their field of study and finish a college degree and worse,
no other school within the city and nearby areas is willing to accept them due to the difference in the
curriculum and school residency requirement. Thus, they filed a petition for mandamus before the
Regional Trial Court of Iloilo City, to command petitioner USA to re-admit them. Aside from the
prayer for re-admission, they also prayed for actual and moral damages in the amount of P50,000.00
for each of them.

Submitting a joint answer to the petition, petitioner USA and the other petitioners, Dean Concepcion
Cajilig and Clinical Instructors Nenalyn Abioda, Mary Espino, Rhodora Azucena, Ma. Dulce Socorro
Posa and Cosette Monteblanco admitted having barred private respondents from finishing their
Nursing course but justified the decision not to re-admit them as being in pursuance of the school's
policy that only students with grades of at least 80% in any major Nursing subject, including Nursing
104, and two minor subjects, are allowed enrollment in the following year. Private respondents were
duly informed and forewarned of their below 80% performance rating. To buttress petitioner's stance,
they placed reliance on Section 9(2) of the Education Act of 1982 (B.P. Blg. 232) which recognizes
the right of students to freely choose their field of study subject to existing curricula, and to continue
their course up to graduation, except in cases of academic deficiency or violation of disciplinary
regulations; and Section 13(2) thereof vesting in institutions of higher learning the right to determine
on academic grounds who shall be admitted to study, who may teach, and what shall be the subjects
of study and research.

Additionally, petitioners contended that private respondents have no cause of action


for mandamus under the premises because there is no clear and well-defined right of the latter
which has been violated neither do the former have a corresponding ministerial duty to re-admit
them, since petitioner USA is a private educational institution not performing public functions and
duties. Under the Manual of Regulations for Private Schools, petitioner USA enjoys the right to
academic freedom.

The trial court was not persuaded that private respondents are entitled to the relief sought. The
dispositive portion of its order dated September 15, 1989 thus reads:

WHEREFORE, this Court resolves that:

1. This Court has jurisdiction over this case as the correct and proper docket fees
has (sic) been paid by petitioners when so required by the Court;

2. That Mandamus will not lie to compel the respondents to enroll petitioning
students because of their academic deficiencies and that this refusal of respondents
university falls within its right to do so under the academic freedom clause of our
Constitution.

This petition is hereby dismissed with cost upon petitioners.

SO ORDERED.1

It supported its ruling on the basis of the following considerations:


When petitioning students enrolled at respondent university, they and their
parents/guardians signed agreements of admission wherein they bound themselves
to abide by the policies of the school, otherwise to discontinue. This is also provided
for in the Nursing Catalog of respondent university.

These petitioning students have been given warnings of their sub-standard


performance after and before examination periods and informed of their efficiency
and performance ratings. During the evaluation and promotional meetings, some of
the students were advised to discontinue while those on the boarder (sic) line were,
for humanitarian reasons (sic), allowed to sign promises to improve, otherwise they
agreed to withdraw from the course. Respondents' judgment not to readmit
petitioning students was based on sound reasons and good faith.

xxx xxx xxx

Upon the admission of petitioning students at (sic) the First Year of (sic) the School
of Nursing of respondent university, they as well as their parents or guardians signed
Agreements for Admission, (Annex 1, 2, 3, 4, and 5 to Answer) where they agreed to
maintain very good academic performance so that the student belongs to the rank
No. 100 of the class.

Upon admission to the Second Year at the start of the school year 1987-88, they also
signed Agreements for Admission, (Annex 6, 7, 8, 9 and 10).Among other things they
agreed that at anytime after the first semester of the first semester internship, they
may be asked to discontinue the course due to grades below 80 on two minor and
any nursing subjects and agreed that at anytime for failure to meet said standard, the
College of Nursing can disqualify said students from the BSN Course and that the
disqualification does not render the college liable for damages said students may
suffer.

The students involved were in the third year of the Nursing Course of the respondent
University at the start of the school year 1988-89 but at the start and by the end of
the first semester were borderline cases. They and their parents/guardians signed
promises to improve, copies attached are Annexes 11, 12, 13, 14, 15, 16 and 17.
They promised to "improve my academic performance" (a grade of at least 80% in all
major nursing subjects) and "improve my behaviour and attitude in the classroom
and/or the clinical area" and "should I fail to meet the above considerations, I will
voluntarily withdraw from this college." However, even these borderline students now
petitioning failed to make good.

. . . .Mandamus will not lie to compel the school authorities to graduate a student who
has failed to comply with the disciplinary and academic rules of the school as said
writ cannot review or control the exercise of discretionary powers (Magtibay vs.
Garcia L-28971, Jan. 25, 1983). The same rule was applied in the recent case of
Tangonan vs. Pano 137 SCRA 245 where our Supreme Court held that a school may
refuse to enroll a student for academic delinquencies. It cannot be compelled by
mandamus to enroll a student. In the same case it was held that a school has the
right to refuse to enroll a student and such refusal falls within the academic freedom
clause of the Constitution.

xxx xxx xxx


Under the principle of equitable estoppel, the petitioning students, their
parents/guardians are now estopped to deny what they have signed at the start of
the semester and to question the same signing only at about the end of the semester
when they could not keep up with the grades required of them.

Petitioning students, their parents/guardians who has (sic) full knowledge of the facts
that the agreement of admission is one-sided against them but continued to keep
quite (sic) and acted on the requirements of the respondent university not to have a
grade below 80% but having failed to obtain the same at grading time shall not be
permitted to act in a manner inconsistent with their former position or conduct to the
injury of the other.2

Respondent Court of Appeals did not agree with the ruling of the trial court. The dispositive portion of
its decision dated April 23, 1991 reads:

WHEREFORE, the judgment appealed from is hereby REVERSED and respondent


USA and the other respondents are hereby ordered to re-admit petitioners as 4th
year students in the College of Nursing of respondent USA for the current school
year, 1991-1992. Costs against the respondents.

SO ORDERED.3

It expressed the different view that:

. . . . The outcome of the case under consideration hinges on the decisive issue as to
whether or not petitioners, with grades ranging from 77% to 78% in Nursing 104, are
deemed, within legal contemplation, to be with academic deficiency. And on this
crucial issue, We cannot help but resolve in the negative. In our considered view,
petitioners possess no academic deficiency within the purview of the aforecited law
(Section IV, paragraph 107 of the Manual or Regulations for Private Schools), and
are not disqualified from re-admission to respondent USA's College of Nursing. While
it is true that they did not obtain a grade of at least 80% in Nursing 104, they passed
and did not fail in said subject. It is irrefutable that 75% is the passing grade in
respondent USA, and in all educational institutions of this country; so that petitioners'
grades of 77% and 78% are well above passing mark. Therefore, petitioners having
been given passing grades in all their subjects and full credit for the corresponding
number of units; it stands to reason, and conclude, that far from suffering from any
academic deficiency petitioners have satisfactorily complied with the prescribed
curriculum, entitling them to re-admission and enrollment as 4th year students in the
College of Nursing of respondent USA. Indeed, to be fair to all concerned, especially
to the students and their parents who sacrifice day and night for the education of
their children, academic deficiency should be construed to refer to failing or flunking
grades or, to be more precise, grades lower than 75% in any subject; something
herein petitioners never obtained. This must be so because exceptions or limitations
to the constitutionally protected right of students to enroll in schools of their
preference must be strictly construed and should not be given an unreasonably
broad and expanded scope. To our mind, this is the proper interpretation and
approach, the agreement between the parties to the contrary notwithstanding. More
concretely stated; the stipulation between petitioners and respondent USA to the
effect that a grade of at least 80% in all major nursing subjects and two (2) minor
subjects is a prerequisite for re-admission is repugnant to public policy and is
consequently unavailing to defeat the constitutionally guaranteed right of petitioners
to re-admission, absent any academic deficiency or violation of rules of discipline.
Verily, clear, express and succinct is the mandate of Section 4, paragraph 107 of the
Manual of Regulations for Private Schools that in the absence of any academic
deficiency or violation of rules on discipline, students have the right to be re-admitted
to finish and graduate from their chosen course. In the instant case, We hold that
petitioners neither have any academic deficiency nor violated any rule of discipline,
and, therefore, richly deserve re-admission in the respondent educational institution.
It bears stressing that the right of every Filipino to acquire an education is impressed
with public interest; and any contract tending to defeat or nullify such right cannot be
countenanced and is not entitled to judicial recognition and protection. Thus infirmed,
the agreements for admission relied upon by respondent USA cannot defeat the right
of petitioners to pursue a successful conclusion their nursing course.

It is not Our purpose, however, to undermine or disregard rules and regulations


promulgated to maintain desirable academic standards; but it bears repeating that
when a school, such as respondent USA here, has given a student a passing grade
of 75% or higher, that passing mark is, to all intents and purposes, a certification and
acknowledgment of the student's eligibility for promotion to the next higher grade;
which, in the case of the herein petitioners, signified their eligibility for re-admission
and enrollment as 4th year students in the College of Nursing of respondent USA
because if the latter itself, which gave petitioners ratings ranging from 77% to 78%
well above the passing mark of 75%, is not ready to re-admit petitioners, how can
other schools with different curricula be expected to admit petitioners who already
finished 3rd year and cannot therefore meet the usual residence requirement?
Obviously, then, there aforesaid contracts invoked by respondent USA are not only
contrary to public policy but are most unfair to petitioners, and cannot be upheld.

Respondents' stance that petitioners are precluded by the principle of estoppel


from impugning or assailing such agreements, is untenable. We believe that the
equitable principle of estoppel cannot muzzle or defeat the constitutional right of a
citizen to pursue higher education subject only to reasonable rules and regulations.
Here, to repeat, what the respondents required of petitioners are unreasonable, nay
unconscionable.

Prior to the decision of respondent court, or on April 4, 1991, petitioners already filed a motion for
dismissal of appeal4 averring, inter alia, that the appeal has become moot and academic because
private respondents have enrolled in and graduated from the Lanting College of Nursing, Tandang
Sora, Quezon City. In the resolution dated April 25, 1991, respondent court merely noted said
motion, considering that the appeal has been decided and the importance of the issues
involved.5 Petitioners then filed a motion for reconsideration ad cautelam of the April 23, 1991
decision, reiterating their previous averments. The motion was denied in the resolution dated June
10, 1991 because:

[t]he importance of the issues involved and jurisprudential relevance and significance
of the ponencia sought to be vacated militate against (petitioners') posture.6

Hence, the present petition.

Petitioners fault respondent court for: 1) not dismissing the case although moot and academic; and
2) ordering them to re-admit private respondents.
Petitioners allege that the private respondents, before rendition of the questioned decision of
respondent court, had already enrolled in the Lanting College of Nursing, Tandang Sora, Quezon
City and graduated in October, 1990. Therefore, respondent court's directive to re-admit them is
futile and illusory. Moreover, while the Manual of Regulations for private Schools (Sections X, XII,
and XIII thereof) is very specific about 75% being the passing grade for the elementary and
secondary courses (or stating with Grade IV up to the intermediate grades), vocational courses, and
in night school (secondary subjects), it is silent with respect to the collegiate course. This can only
mean that the passing grade therein can be based on school standards and policies, in consonance
with the principle of academic freedom. With respect to the Nursing course in particular, it is
undeniable that Nursing as a profession involves the life and death of patients, and petitioners bear
a heavy responsibility to the local community, the nation, and the world to produce graduates of
competence and high quality. The high standard of grading which they have set coupled with rigid
training and instruction is intended to develop the quality of extraordinary diligence which is expected
of professionals. This goal cannot be accomplished by graduates who pass the ordinary and dilute
standard of 75%.

Private respondents do not deny that they had enrolled in the Lanting College of Nursing and
finished the Nursing course therein in October, 1990. Nevertheless, they contend that even if a case
were moot and academic, a statement of the governing principle is appropriate in the resolution
thereof for the guidance not only of the parties but of others similarly situated. Petitioners cannot
dispute the fact that private respondents obtained grades of 77% or 78% in Nursing 104, as reflected
in their respective transcripts of records. And they earned credits for the subject, signifying that they
have passed. The pertinent provisions of the Manual of Regulations for Private Schools that were
cited by petitioners can very well be construed to mean that a student given credit for the completion
of a course is eligible for promotion.

We rule that the special civil action of mandamus is not available in this instance.

The petition which was filed by private respondents before the trial court sought the issuance of a
writ of mandamus, to command petitioners to admit them for enrollment.7 Taking into account the
admission of private respondents that they have finished their Nursing course at the Lanting College
of Nursing even before the promulgation of the questioned decision, this case has clearly been
overtaken by events and should therefore be dismissed. However, the case of Eastern Broadcasting
Corporation (DYRE) v. Dans, etc., et al.8 is the authority for the view that even if a case were moot
and academic, a statement of the governing principle is appropriate in the resolution of dismissal for
the guidance not only of the parties but of others similarly situated.9 We shall adhere to this view and
proceed to dwell on the merits of this petition.

Under Rule 65, Section 3 of the Rules of Court, mandamus lies under any of the following cases: (1)
against any tribunal which unlawfully neglects the performance of an act which the law specifically
enjoins as a duty; (2) in case any corporation, board or person unlawfully neglects the performance
of an act which the law enjoins as a duty resulting from an office, trust or station; and (3) in case any
tribunal, corporation, board or person unlawfully excludes another from the use and enjoyment of a
right or office to which such other is legally entitled; and there is no other plain, speedy and
adequate remedy in the ordinary course of law. 10

The nature of mandamus has been the subject of discussions in several cases. It is settled
that mandamus is employed to compel the performance, when refused, of a ministerial duty, this
being its main objective. It does not lie to require anyone to fulfill contractual obligations or to compel
a course of conduct, 11 nor to control or review the exercise of discretion. 12 On the part of the
petitioner, 13 it is essential to the issuance of a writ of mandamus that he should have a clear legal
right to the thing demanded and it must be the imperative duty of the respondent to perform the act
required. It never issues in doubtful cases. While it may not be necessary that the duty be absolutely
expressed, it must however, be clear. The writ will not issue to compel an official to do anything
which is not his duty to do or which is his duty not to do, or give to the applicant anything to which he
is not entitled by law. The writ neither confers powers nor imposes duties. It is simply a command to
exercise a power already possessed and to perform a duty already imposed. 14

In the present case, private respondents have failed to satisfy the prime and indispensable requisites
of a mandamus proceeding. There is no showing that they possess a clear legal right to be enrolled
in petitioner USA. Moreover, assuming that petitioner USA has an imperative duty to enroll them, it
does not appear to this Court that the duty is merely ministerial; rather, it is a duty involving the
exercise of discretion. This was likewise our ruling in the case of Tangonan v. Pao et al., 15 which
involves a factual setting similar to the present petition. We adopted as our own the rationalization of
the trial court therein:

. . . . Every school has a right to determine who are the students it should accept for
enrolment. It has the right to judge the fitness of students. This is particularly true in
the case of nursing students who perform essential health services. Over and above
its responsibility to petitioner is the responsibility of the school to the general public
and the community. This Court take (sic) judicial notice that nursing has become a
popular course because of the great demand for Filipino Nurses abroad, especially in
the United States. It is essential therefore that Nursing graduates who go abroad and
become in a sense our own ambassador (sic) should be highly qualified to perform
their tasks. This is the responsibility of our school and in the discharge of this
responsibility, they certainly should be given the greatest latitude in formulating their
admission policies.

While petitioner questions the findings of respondent school as to her academic


competence, the Court cannot find any legal jurisdiction to interfere in the exercise of
judgment of the school on this matter. . . .16

The late Chief Justice Claudio Teehankee supplied the rationale underlying our attitude
towards academic decisions or policies in his concurring opinion in the case of Garcia v. The
Faculty Admission Committee, et al., 17 to wit:

Only . . . when there is marked arbitrariness, will the courts interfere with the
academic judgment of the school faculty and the proper authorities as to the
competence and fitness of an applicant for enrollment. . . . The courts simply do not
have the competence nor inclination to constitute themselves as Admission
Committees of the universities and institutions of higher learning and to substitute
their judgment for that of the regularly constituted Admission Committees of such
educational institutions. Were the courts to do so, they would conceivably be
swamped with petitions for admission from the thousands refused admission every
year, and next the thousands who flunked and were dropped would also be
petitioning the courts for a judicial review of their grades.

Section IV, paragraph 107 of the Manual of Regulations for Private School states:

Every student has the right to enrol in any school, college or university upon meeting
its specific requirement and reasonable regulation: Provided, that except in the case
of academic delinquency and violation of disciplinary regulation, the student is
presumed to be qualified for enrolment for the entire period he is expected to
complete his course without prejudice to his right to transfer. 18
The meaning of this provision is that the school, after having accepted a student for enrollment in a
given course may not expel him or refuse to re-enroll him until he completes his course, except
when he is academically deficientor has violated the rules of discipline. He is presumed to be
qualified to study there for the entire period it will take to complete his course. 19

This presumption has been translated into a right in Batas Pambansa Blg. 232, otherwise known as
the "Education Act of 1982." 20 Section 9(2) of this Act provides:

SEC. 9. Rights of Students in School. In addition to other rights, and subject to the
limitations prescribed by law and regulations, students and pupils in all schools shall
enjoy the following rights:

xxx xxx xxx

(2) The right to freely choose their field of study subject to existing curricula and to
continue their course therein up to graduation, except in cases of academic
deficiency, or violation of disciplinary regulations. (emphasis supplied)

Article XIV, Section 5(3) of the 1987 Constitution affords a similar right, although limited to citizens:

Sec. 5 (3) Every citizen has a right to select a profession or course of study, subject
to fair, reasonable, and equitable admission and academic requirements. (emphasis
supplied).

At the same time, educational institutions are entitled to pursue their academic freedom and in the
process have the concomitant right to see to it that this freedom is not jeopardized. 21

Section 13(2) of B.P. Blg. 232 provides:

Sec. 13. Rights of Schools. In addition to their rights provided for by law, school
shall enjoy the following:

xxx xxx xxx

2. The right for institutions of higher learning to determine on academic grounds who
shall be admitted to study, who may teach, and what shall be the subjects of the
study and research. (emphasis supplied)

Equally mandated by Article XIV, Section 5(2) of the 1987 Constitution is that academic freedom
shall be enjoyed in all institutions of higher learning. Academic freedom of educational institutions
has been defined as the right of the school or college to decide for itself, its aims and objectives, and
how best to attain them free from outside coercion or interference save possibly when the
overriding public welfare calls for some restraint. It has a wide sphere of autonomy certainly
extending to the choice of students. Said constitutional provision is not to be construed in a niggardly
manner or in a grudging fashion. That would be to frustrate its purposes and nullify its intent. 22

While it is true that an institution of learning has a contractual obligation to afford its students a fair
opportunity to complete the course they seek to pursue, 23 since a contract creates reciprocal rights
and obligations, the obligation of the school to educate a student would imply a corresponding
obligation on the part of the student to study and obey the rules and regulations of the
school. 24 When a student commits a serious breach of discipline or fails to maintain the required
academic standard, he forfeits his contractual right. In this connection, this Court recognizes the
expertise of educational institutions in the various fields of learning. Thus, they are afforded ample
discretion to formulate reasonable rules and regulations in the admission of students, 25 including
setting of academic standards. Within the parameters thereof, they are competent to determine who
are entitled to admission and re-admission.

We find the challenged regulation of petitioner USA reasonable and relevant to its objective, namely:
. . . to produce graduates of proven competence and aptitude in a demanding profession, for which it
is responsible to society-at-large, not only nationally but also internationally, considering the good
fame and reputation of Filipino nurses abroad. 26 Although private respondents did not flunk in
Nursing 104 but on the contrary earned credits therefor, nevertheless, their performances are still
academically deficient for failure to meet the standards set by petitioner USA. Besides, it is worthy to
note that they were apprised fully beforehand about the rules and regulations of petitioner USA.
When they applied for admission to first year at petitioner USA, they signed agreements therefor,
containing the following terms and conditions:

1. That the College of Nursing, University of San Agustin admits _________ to the
BSN Courses for a period of one year;.

2. That after this period of probation, a final deliberation will take place to decide the
Candidates who will be taken in for BSN second year based on the following
conditions:

"a. very good academic performance so that the student belongs to


the rank No. 100 of the class;

"b. very good attitudes such as punctuality in classes, cooperation in


the activities in the school, respectfulness and cordiality in dealing
with others, honesty;

"c. good physical and mental health;

"d. obedience to the rules and regulations of the College of Nursing.

3. That I hereby waive any right and agree that anytime for failure of the above-
named student to meet the necessary standards specifically mentioned above, the
College of Nursing, USA can disqualify said student from the BSN Course;

4. That the disqualification of the said student from the department does not render
the College of Nursing, USA liable from (sic) whatever damage the said student may
suffer. 27

A year later, or on April 5, 1987, private respondents signed new agreements for admission, subject
to the following terms and conditions:

1. That the College of Nursing, University of San Agustin admits _________ to the
BSN Course for a period of probation of at least one (1) semester;

2. That after the period of probation (first semester of the first year internship) and at
anytime thereafter, unless officially accepted as a candidate for graduation, the
above-named student may be asked to discontinue the course due to:
"a. poor academic performance, such as failure in one nursing
subject or a grade of 70%;

"b. receipt of a grade below 80 on two minor and any nursing


subjects;

"c. frequent absences from classes and related clinical experience


without legitimate reasons;

"d. poor physical and mental health and;

"e. failure to comply with the requirements of the University and/or the
rules and regulations of the College of Nursing.

3. That I hereby waive any right and agree that any time for failure of the above-
named student to meet the necessary standards specifically mentioned above, the
College of Nursing, USA can disqualify said student from the BSN Course;

4. That the College of Nursing has no right to disqualify the said student possessing
the necessary qualifications and has completed the requirements both academic and
related clinical experience and thus has met the standards set by the College of
Nursing, USA and the MECS office;

5. That the disqualification of the said student from the department does not render
the College of Nursing, University of San Agustin liable from (sic) whatever damage
the said student may suffer.28

On October 28, 1988, private respondents, except Michael Kim So, wrote to the Dean, College of
Nursing of petitioner USA promising to:

a. improve my academic performance (a grade of at least 80% in all major nursing


subjects).

b. improve my behavior and attitude in the classroom and/or the clinical area.

Should I fail to meet the above considerations I will voluntarily withdraw from this
college. 29

Our conclusion is, as sure to follow as night follows the day, that the dismissal of private
respondents' petition by the trial court is proper.

WHEREFORE, the petition is hereby GRANTED. The decision of the Court of Appeals dated April
23, 1991 and its resolutions dated April 25, 1991 and June 10, 1991 are SET ASIDE. The order of
the Regional Trial Court of Iloilo City dated September 15, 1989 is REINSTATED.

SO ORDERED.

Narvasa, C.J., Regalado and Puno, JJ., concur.


EN BANC

[G.R. No. 141284. August 15, 2000]

INTEGRATED BAR OF THE PHILIPPINES, petitioner, vs. HON.


RONALDO B. ZAMORA, GEN. PANFILO M. LACSON, GEN.
EDGAR B. AGLIPAY, and GEN. ANGELO REYES, respondents.

DECISION
KAPUNAN, J.:

At bar is a special civil action for certiorari and prohibition with prayer for issuance of
a temporary restraining order seeking to nullify on constitutional grounds the order of
President Joseph Ejercito Estrada commanding the deployment of the Philippine
Marines (the Marines) to join the Philippine National Police (the PNP) in visibility patrols
around the metropolis.
In view of the alarming increase in violent crimes in Metro Manila, like
robberies, kidnappings and carnappings, the President, in a verbal directive, ordered
the PNP and the Marines to conduct joint visibility patrols for the purpose of crime
prevention and suppression. The Secretary of National Defense, the Chief of Staff of the
Armed Forces of the Philippines (the AFP), the Chief of the PNP and the Secretary of
the Interior and Local Government were tasked to execute and implement the said
order. In compliance with the presidential mandate, the PNP Chief, through Police Chief
Superintendent Edgar B. Aglipay, formulated Letter of Instruction 02/2000 [1] (the LOI)
which detailed the manner by which the joint visibility patrols, called Task
Force Tulungan, would be conducted.[2] Task Force Tulungan was placed under the
leadership of the Police Chief of Metro Manila.
Subsequently, the President confirmed his previous directive on the deployment of
the Marines in a Memorandum, dated24 January 2000, addressed to the Chief of Staff
of the AFP and the PNP Chief.[3] In the Memorandum, the President expressed his
desire to improve the peace and order situation in Metro Manila through a more
effective crime prevention program including increased police patrols. [4] The President
further stated that to heighten police visibility in the metropolis, augmentation from the
AFP is necessary.[5] Invoking his powers as Commander-in-Chief under Section 18,
Article VII of the Constitution, the President directed the AFP Chief of Staff and PNP
Chief to coordinate with each other for the proper deployment and utilization of the
Marines to assist the PNP in preventing or suppressing criminal or lawless
violence.[6] Finally, the President declared that the services of the Marines in the anti-
crime campaign are merely temporary in nature and for a reasonable period only, until
such time when the situation shall have improved.[7]
The LOI explains the concept of the PNP-Philippine Marines joint visibility patrols as
follows:
xxx

2. PURPOSE:

The Joint Implementing Police Visibility Patrols between the PNP NCRPO and
the Philippine Marines partnership in the conduct of visibility patrols in Metro
Manila for the suppression of crime prevention and other serious threats to
national security.

3. SITUATION:

Criminal incidents in Metro Manila have been perpetrated not only by ordinary
criminals but also by organized syndicates whose members include active and
former police/military personnel whose training, skill, discipline and firepower
prove well-above the present capability of the local police alone to
handle. The deployment of a joint PNP NCRPO-Philippine Marines in the
conduct of police visibility patrol in urban areas will reduce the incidence of
crimes specially those perpetrated by active or former police/military
personnel.

4. MISSION:

The PNP NCRPO will organize a provisional Task Force to conduct joint
NCRPO-PM visibility patrols to keep Metro Manila streets crime-free, through
a sustained street patrolling to minimize or eradicate all forms of high-profile
crimes especially those perpetrated by organized crime syndicates whose
members include those that are well-trained, disciplined and well-armed active
or former PNP/Military personnel.

5. CONCEPT IN JOINT VISIBILITY PATROL OPERATIONS:

a. The visibility patrols shall be conducted jointly by the NCRPO [National


Capital Regional Police Office] and the Philippine Marines to curb criminality
in Metro Manila and to preserve the internal security of the state against
insurgents and other serious threat to national security, although the primary
responsibility over Internal Security Operations still rests upon the AFP.
b. The principle of integration of efforts shall be applied to eradicate all forms
of high-profile crimes perpetrated by organized crime syndicates operating in
Metro Manila. This concept requires the military and police to work cohesively
and unify efforts to ensure a focused, effective and holistic approach in
addressing crime prevention. Along this line, the role of the military and police
aside from neutralizing crime syndicates is to bring a wholesome atmosphere
wherein delivery of basic services to the people and development is achieved.
Hand-in-hand with this joint NCRPO-Philippine Marines visibility patrols, local
Police Units are responsible for the maintenance of peace and order in their
locality.

c. To ensure the effective implementation of this project, a provisional Task


Force TULUNGAN shall be organized to provide the mechanism, structure,
and procedures for the integrated planning, coordinating, monitoring and
assessing the security situation.

xxx.[8]
The selected areas of deployment under the LOI are: Monumento Circle, North
Edsa (SM City), Araneta Shopping Center, Greenhills, SM Megamall, Makati
Commercial Center, LRT/MRT Stations and the NAIA and Domestic Airport.[9]
On 17 January 2000, the Integrated Bar of the Philippines (the IBP) filed the instant
petition to annul LOI 02/2000 and to declare the deployment of the Philippine Marines,
null and void and unconstitutional, arguing that:
I

THE DEPLOYMENT OF THE PHILIPPINE MARINES IN METRO MANILA IS


VIOLATIVE OF THE CONSTITUTION, IN THAT:

A) NO EMERGENCY SITUATION OBTAINS IN METRO MANILA AS WOULD


JUSTIFY, EVEN ONLY REMOTELY, THE DEPLOYMENT OF SOLDIERS
FOR LAW ENFORCEMENT WORK; HENCE, SAID DEPLOYMENT IS IN
DEROGATION OF ARTICLE II, SECTION 3 OF THE CONSTITUTION;

B) SAID DEPLOYMENT CONSTITUTES AN INSIDIOUS INCURSION BY


THE MILITARY IN A CIVILIAN FUNCTION OF GOVERNMENT (LAW
ENFORCEMENT) IN DEROGATION OF ARTICLE XVI, SECTION 5 (4), OF
THE CONSTITUTION;

C) SAID DEPLOYMENT CREATES A DANGEROUS TENDENCY TO RELY


ON THE MILITARY TO PERFORM THE CIVILIAN FUNCTIONS OF THE
GOVERNMENT.
II

IN MILITARIZING LAW ENFORCEMENT IN METRO MANILA, THE


ADMINISTRATION IS UNWITTINGLY MAKING THE MILITARY MORE
POWERFUL THAN WHAT IT SHOULD REALLY BE UNDER THE
CONSTITUTION.[10]

Asserting itself as the official organization of Filipino lawyers tasked with the
bounden duty to uphold the rule of law and the Constitution, the IBP questions the
validity of the deployment and utilization of the Marines to assist the PNP in law
enforcement.
Without granting due course to the petition, the Court in a Resolution, [11] dated 25
January 2000, required the Solicitor General to file his Comment on the petition. On 8
February 2000, the Solicitor General submitted his Comment.
The Solicitor General vigorously defends the constitutionality of the act of the
President in deploying the Marines, contending, among others, that petitioner has no
legal standing; that the question of deployment of the Marines is not proper for judicial
scrutiny since the same involves a political question; that the organization and conduct
of police visibility patrols, which feature the team-up of one police officer and one
Philippine Marine soldier, does not violate the civilian supremacy clause in the
Constitution.
The issues raised in the present petition are: (1) Whether or not petitioner has legal
standing; (2) Whether or not the Presidents factual determination of the necessity of
calling the armed forces is subject to judicial review; and, (3) Whether or not the calling
of the armed forces to assist the PNP in joint visibility patrols violates the
constitutional provisions on civilian supremacy over the military and the civilian
character of the PNP.
The petition has no merit.
First, petitioner failed to sufficiently show that it is in possession of the requisites of
standing to raise the issues in the petition. Second, the President did not commit grave
abuse of discretion amounting to lack or excess of jurisdiction nor did he commit a
violation of the civilian supremacy clause of the Constitution.
The power of judicial review is set forth in Section 1, Article VIII of the Constitution,
to wit:

Section 1. The judicial power shall be vested in one Supreme Court and in
such lower courts as may be established by law.

Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable,
and to determine whether or not there has been grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government.

When questions of constitutional significance are raised, the Court can exercise its
power of judicial review only if the following requisites are complied with, namely: (1) the
existence of an actual and appropriate case; (2) a personal and substantial interest of
the party raising the constitutional question; (3) the exercise of judicial review is pleaded
at the earliest opportunity; and (4) the constitutional question is the lis mota of the
case.[12]

The IBP has not sufficiently complied with the requisites of standing in this case.

Legal standing or locus standi has been defined as a personal and substantial
interest in the case such that the party has sustained or will sustain direct injury as a
result of the governmental act that is being challenged.[13] The term interest means a
material interest, an interest in issue affected by the decree, as distinguished from mere
interest in the question involved, or a mere incidental interest. [14] The gist of the question
of standing is whether a party alleges such personal stake in the outcome of the
controversy as to assure that concrete adverseness which sharpens the presentation of
issues upon which the court depends for illumination of difficult constitutional
questions.[15]
In the case at bar, the IBP primarily anchors its standing on its alleged responsibility
to uphold the rule of law and the Constitution. Apart from this declaration, however, the
IBP asserts no other basis in support of its locus standi. The mere invocation by the IBP
of its duty to preserve the rule of law and nothing more, while undoubtedly true, is not
sufficient to clothe it with standing in this case. This is too general an interest which is
shared by other groups and the whole citizenry. Based on the standards above-stated,
the IBP has failed to present a specific and substantial interest in the resolution of the
case. Its fundamental purpose which, under Section 2, Rule 139-A of the Rules of
Court, is to elevate the standards of the law profession and to improve the
administration of justice is alien to, and cannot be affected by the deployment of the
Marines. It should also be noted that the interest of the National President of the IBP
who signed the petition, is his alone, absent a formal board resolution authorizing him to
file the present action. To be sure, members of the BAR, those in the judiciary included,
have varying opinions on the issue. Moreover, the IBP, assuming that it has duly
authorized the National President to file the petition, has not shown any specific injury
which it has suffered or may suffer by virtue of the questioned governmental act.Indeed,
none of its members, whom the IBP purportedly represents, has sustained any form of
injury as a result of the operation of the joint visibility patrols. Neither is it alleged that
any of its members has been arrested or that their civil liberties have been violated by
the deployment of the Marines. What the IBP projects as injurious is the supposed
militarization of law enforcement which might threaten Philippine democratic institutions
and may cause more harm than good in the long run. Not only is the presumed injury
not personal in character, it is likewise too vague, highly speculative and uncertain to
satisfy the requirement of standing. Since petitioner has not successfully established a
direct and personal injury as a consequence of the questioned act, it does not possess
the personality to assail the validity of the deployment of the Marines. This Court,
however, does not categorically rule that the IBP has absolutely no standing to raise
constitutional issues now or in the future. The IBP must, by way of allegations and
proof, satisfy this Court that it has sufficient stake to obtain judicial resolution of the
controversy.
Having stated the foregoing, it must be emphasized that this Court has the
discretion to take cognizance of a suit which does not satisfy the requirement of legal
standing when paramount interest is involved.[16] In not a few cases, the Court has
adopted a liberal attitude on the locus standi of a petitioner where the petitioner is able
to craft an issue of transcendental significance to the people. [17] Thus, when the issues
raised are of paramount importance to the public, the Court may brush aside
technicalities of procedure.[18] In this case, a reading of the petition shows that the IBP
has advanced constitutional issues which deserve the attention of this Court in view of
their seriousness, novelty and weight as precedents. Moreover, because peace and
order are under constant threat and lawless violence occurs in increasing tempo,
undoubtedly aggravated by the Mindanao insurgency problem, the legal controversy
raised in the petition almost certainly will not go away. It will stare us in the face
again. It, therefore, behooves the Court to relax the rules on standing and to resolve the
issue now, rather than later.

The President did not commit grave abuse of discretion in calling out the Marines.

In the case at bar, the bone of contention concerns the factual determination of the
President of the necessity of calling the armed forces, particularly the Marines, to aid
the PNP in visibility patrols. In this regard, the IBP admits that the deployment of the
military personnel falls under the Commander-in-Chief powers of the President as
stated in Section 18, Article VII of the Constitution, specifically, the power to call out the
armed forces to prevent or suppress lawless violence, invasion or rebellion.What the
IBP questions, however, is the basis for the calling of the Marines under the aforestated
provision. According to the IBP, no emergency exists that would justify the need for the
calling of the military to assist the police force. It contends that no lawless violence,
invasion or rebellion exist to warrant the calling of the Marines. Thus, the IBP prays that
this Court review the sufficiency of the factual basis for said troop [Marine]
deployment.[19]
The Solicitor General, on the other hand, contends that the issue pertaining to the
necessity of calling the armed forces is not proper for judicial scrutiny since it involves a
political question and the resolution of factual issues which are beyond the review
powers of this Court.
As framed by the parties, the underlying issues are the scope of presidential powers
and limits, and the extent of judicial review. But, while this Court gives considerable
weight to the parties formulation of the issues, the resolution of the controversy may
warrant a creative approach that goes beyond the narrow confines of the issues
raised. Thus, while the parties are in agreement that the power exercised by the
President is the power to call out the armed forces, the Court is of the view that the
power involved may be no more than the maintenance of peace and order and
promotion of the general welfare.[20] For one, the realities on the ground do not show that
there exist a state of warfare, widespread civil unrest or anarchy. Secondly, the full
brunt of the military is not brought upon the citizenry, a point discussed in the latter part
of this decision. In the words of the late Justice Irene Cortes in Marcos v. Manglapus:

More particularly, this case calls for the exercise of the Presidents powers as
protector of the peace. [Rossiter, The American Presidency]. The power of the
President to keep the peace is not limited merely to exercising the
commander-in-chief powers in times of emergency or to leading the State
against external and internal threats to its existence. The President is not only
clothed with extraordinary powers in times of emergency, but is also tasked
with attending to the day-to-day problems of maintaining peace and order and
ensuring domestic tranquility in times when no foreign foe appears on the
horizon. Wide discretion, within the bounds of law, in fulfilling presidential
duties in times of peace is not in any way diminished by the relative want of an
emergency specified in the commander-in-chief provision. For in making the
President commander-in-chief the enumeration of powers that follow cannot
be said to exclude the Presidents exercising as Commander-in-Chief powers
short of the calling of the armed forces, or suspending the privilege of the writ
of habeas corpus or declaring martial law, in order to keep the peace, and
maintain public order and security.

xxx[21]
Nonetheless, even if it is conceded that the power involved is the Presidents power
to call out the armed forces to prevent or suppress lawless violence, invasion or
rebellion, the resolution of the controversy will reach a similar result.
We now address the Solicitor Generals argument that the issue involved is not
susceptible to review by the judiciary because it involves a political question, and thus,
not justiciable.
As a general proposition, a controversy is justiciable if it refers to a matter which is
appropriate for court review.[22] It pertains to issues which are inherently susceptible of
being decided on grounds recognized by law. Nevertheless, the Court does not
automatically assume jurisdiction over actual constitutional cases brought before it even
in instances that are ripe for resolution. One class of cases wherein the Court hesitates
to rule on are political questions. The reason is that political questions are concerned
with issues dependent upon the wisdom, not the legality, of a particular act or measure
being assailed. Moreover, the political question being a function of the separation of
powers, the courts will not normally interfere with the workings of another co-equal
branch unless the case shows a clear need for the courts to step in to uphold the law
and the Constitution.
As Taada v. Cuenco[23] puts it, political questions refer to those questions which,
under the Constitution, are to be decided by the people in their sovereign capacity, or in
regard to which full discretionary authority has been delegated to the legislative or
executive branch of government. Thus, if an issue is clearly identified by the text of the
Constitution as matters for discretionary action by a particular branch of government or
to the people themselves then it is held to be a political question.In the classic
formulation of Justice Brennan in Baker v. Carr,[24] [p]rominent on the surface of any
case held to involve a political question is found a textually demonstrable constitutional
commitment of the issue to a coordinate political department; or a lack of judicially
discoverable and manageable standards for resolving it; or the impossibility of deciding
without an initial policy determination of a kind clearly for nonjudicial discretion; or the
impossibility of a courts undertaking independent resolution without expressing lack of
the respect due coordinate branches of government; or an unusual need for
unquestioning adherence to a political decision already made; or the potentiality of
embarassment from multifarious pronouncements by various departments on the one
question.
The 1987 Constitution expands the concept of judicial review by providing that (T)he
Judicial power shall be vested in one Supreme Court and in such lower courts as may
be established by law. Judicial power includes the duty of the courts of justice to settle
actual controversies involving rights which are legally demandable and enforceable, and
to determine whether or notthere has been a grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of any branch or instrumentality of the
Government.[25] Under this definition, the Court cannot agree with the Solicitor General
that the issue involved is a political question beyond the jurisdiction of this Court to
review. When the grant of power is qualified, conditional or subject to limitations, the
issue of whether the prescribed qualifications or conditions have been met or the
limitations respected, is justiciable - the problem being one of legality or validity, not its
wisdom.[26] Moreover, the jurisdiction to delimit constitutional boundaries has been given
to this Court.[27] When political questions are involved, the Constitution limits the
determination as to whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of the official whose action is
being questioned.[28]
By grave abuse of discretion is meant simply capricious or whimsical exercise of
judgment that is patent and gross as to amount to an evasion of positive duty or a virtual
refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as
where the power is exercised in an arbitrary and despotic manner by reason of passion
or hostility.[29] Under this definition, a court is without power to directly decide matters
over which full discretionary authority has been delegated. But while this Court has no
power to substitute its judgment for that of Congress or of the President, it may look into
the question of whether such exercise has been made in grave abuse of discretion. [30] A
showing that plenary power is granted either department of government, may not be an
obstacle to judicial inquiry, for the improvident exercise or abuse thereof may give rise
to justiciable controversy.[31]
When the President calls the armed forces to prevent or suppress lawless violence,
invasion or rebellion, he necessarily exercises a discretionary power solely vested in his
wisdom. This is clear from the intent of the framers and from the text of the Constitution
itself. The Court, thus, cannot be called upon to overrule the Presidents wisdom or
substitute its own. However, this does not prevent an examination of whether such
power was exercised within permissible constitutional limits or whether it was exercised
in a manner constituting grave abuse of discretion. In view of the constitutional intent to
give the President full discretionary power to determine the necessity of calling out the
armed forces, it is incumbent upon the petitioner to show that the Presidents decision is
totally bereft of factual basis. The present petition fails to discharge such heavy burden
as there is no evidence to support the assertion that there exist no justification for
calling out the armed forces. There is, likewise, no evidence to support the proposition
that grave abuse was committed because the power to call was exercised in such a
manner as to violate the constitutional provision on civilian supremacy over the
military. In the performance of this Courts duty of purposeful hesitation [32] before
declaring an act of another branch as unconstitutional, only where such grave abuse of
discretion is clearly shown shall the Court interfere with the Presidents judgment. To
doubt is to sustain.
There is a clear textual commitment under the Constitution to bestow on the
President full discretionary power to call out the armed forces and to determine the
necessity for the exercise of such power. Section 18, Article VII of the Constitution,
which embodies the powers of the President as Commander-in-Chief, provides in part:

The President shall be the Commander-in-Chief of all armed forces of the


Philippines and whenever it becomes necessary, he may call out such armed
forces to prevent or suppress lawless violence, invasion or rebellion. In case
of invasion or rebellion, when the public safety requires it, he may, for a period
not exceeding sixty days, suspend the privilege of the writ of habeas corpus,
or place the Philippines or any part thereof under martial law.

xxx
The full discretionary power of the President to determine the factual basis for the
exercise of the calling out power is also implied and further reinforced in the rest of
Section 18, Article VII which reads, thus:
xxx

Within forty-eight hours from the proclamation of martial law or the suspension
of the privilege of the writ of habeas corpus, the President shall submit a
report in person or in writing to the Congress. The Congress, voting jointly, by
a vote of at least a majority of all its Members in regular or special session,
may revoke such proclamation or suspension, which revocation shall not be
set aside by the President. Upon the initiative of the President, the Congress
may, in the same manner, extend such proclamation or suspension for a
period to be determined by the Congress, if the invasion or rebellion shall
persist and public safety requires it.

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

The Supreme Court may review, in an appropriate proceeding filed by any


citizen, the sufficiency of the factual basis of the proclamation of martial law or
the suspension of the privilege of the writ or the extension thereof, and must
promulgate its decision thereon within thirty days from its filing.

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

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

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

Under the foregoing provisions, Congress may revoke such proclamation or


suspension and the Court may review the sufficiency of the factual basis
thereof. However, there is no such equivalent provision dealing with the revocation or
review of the Presidents action to call out the armed forces. The distinction places the
calling out power in a different category from the power to declare martial law and the
power to suspend the privilege of the writ of habeas corpus, otherwise, the framers of
the Constitution would have simply lumped together the three powers and provided for
their revocation and review without any qualification. Expressio unius est exclusio
alterius. Where the terms are expressly limited to certain matters, it may not, by
interpretation or construction, be extended to other matters. [33] That the intent of the
Constitution is exactly what its letter says, i.e., that the power to call is fully discretionary
to the President, is extant in the deliberation of the Constitutional Commission, to wit:

FR. BERNAS. It will not make any difference. I may add that there is a
graduated power of the President as Commander-in-Chief. First, he can call
out such Armed Forces as may be necessary to suppress lawless violence;
then he can suspend the privilege of the writ of habeas corpus, then he can
impose martial law. This is a graduated sequence.

When he judges that it is necessary to impose martial law or suspend the


privilege of the writ of habeas corpus, his judgment is subject to review. We
are making it subject to review by the Supreme Court and subject to
concurrence by the National Assembly. But when he exercises this lesser
power of calling on the Armed Forces, when he says it is necessary, it is my
opinion that his judgment cannot be reviewed by anybody.

xxx

FR. BERNAS. Let me just add that when we only have imminent danger, the
matter can be handled by the first sentence: The President may call out such
armed forces to prevent or suppress lawless violence, invasion or rebellion.
So we feel that that is sufficient for handling imminent danger.

MR. DE LOS REYES. So actually, if a President feels that there is imminent


danger, the matter can be handled by the First Sentence: The
President....may call out such Armed Forces to prevent or suppress lawless
violence, invasion or rebellion. So we feel that that is sufficient for handling
imminent danger, of invasion or rebellion, instead of imposing martial law or
suspending the writ of habeas corpus, he must necessarily have to call the
Armed Forces of the Philippines as their Commander-in-Chief. Is that the
idea?

MR. REGALADO. That does not require any concurrence by the legislature
nor is it subject to judicial review.[34]

The reason for the difference in the treatment of the aforementioned powers
highlights the intent to grant the President the widest leeway and broadest discretion in
using the power to call out because it is considered as the lesser and more benign
power compared to the power to suspend the privilege of the writ of habeas corpus and
the power to impose martial law, both of which involve the curtailment and suppression
of certain basic civil rights and individual freedoms, and thus necessitating safeguards
by Congress and review by this Court.
Moreover, under Section 18, Article VII of the Constitution, in the exercise of the
power to suspend the privilege of the writ of habeas corpus or to impose martial law,
two conditions must concur: (1) there must be an actual invasion or rebellion and, (2)
public safety must require it. These conditions are not required in the case of the power
to call out the armed forces. The only criterion is that whenever it becomes necessary,
the President may call the armed forces to prevent or suppress lawless violence,
invasion or rebellion." The implication is that the President is given full discretion and
wide latitude in the exercise of the power to call as compared to the two other powers.
If the petitioner fails, by way of proof, to support the assertion that the President
acted without factual basis, then this Court cannot undertake an independent
investigation beyond the pleadings. The factual necessity of calling out the armed forces
is not easily quantifiable and cannot be objectively established since matters considered
for satisfying the same is a combination of several factors which are not always
accessible to the courts. Besides the absence of textual standards that the court may
use to judge necessity, information necessary to arrive at such judgment might also
prove unmanageable for the courts.Certain pertinent information might be difficult to
verify, or wholly unavailable to the courts. In many instances, the evidence upon which
the President might decide that there is a need to call out the armed forces may be of a
nature not constituting technical proof.
On the other hand, the President as Commander-in-Chief has a vast intelligence
network to gather information, some of which may be classified as highly confidential or
affecting the security of the state. In the exercise of the power to call, on-the-spot
decisions may be imperatively necessary in emergency situations to avert great loss of
human lives and mass destruction of property. Indeed, the decision to call out the
military to prevent or suppress lawless violence must be done swiftly and decisively if it
were to have any effect at all. Such a scenario is not farfetched when we consider the
present situation in Mindanao, where the insurgency problem could spill over the other
parts of the country. The determination of the necessity for the calling out power if
subjected to unfettered judicial scrutiny could be a veritable prescription for disaster, as
such power may be unduly straitjacketed by an injunction or a temporary restraining
order every time it is exercised.
Thus, it is the unclouded intent of the Constitution to vest upon the President, as
Commander-in-Chief of the Armed Forces, full discretion to call forth the military when
in his judgment it is necessary to do so in order to prevent or suppress lawless violence,
invasion or rebellion. Unless the petitioner can show that the exercise of such discretion
was gravely abused, the Presidents exercise of judgment deserves to be accorded
respect from this Court.
The President has already determined the necessity and factual basis for calling the
armed forces. In his Memorandum, he categorically asserted that, [V]iolent crimes like
bank/store robberies, holdups, kidnappings and carnappings continue to occur in Metro
Manila...[35] We do not doubt the veracity of the Presidents assessment of the situation,
especially in the light of present developments. The Court takes judicial notice of the
recent bombings perpetrated by lawless elements in the shopping malls, public utilities,
and other public places. These are among the areas of deployment described in the LOI
2000.Considering all these facts, we hold that the President has sufficient factual basis
to call for military aid in law enforcement and in the exercise of this constitutional power.

The deployment of the Marines does not violate the civilian supremacy clause nor
does it infringe the civilian character of the police force.
Prescinding from its argument that no emergency situation exists to justify the
calling of the Marines, the IBP asserts that by the deployment of the Marines, the
civilian task of law enforcement is militarized in violation of Section 3, Article II[36] of the
Constitution.
We disagree. The deployment of the Marines does not constitute a breach of the
civilian supremacy clause. The calling of the Marines in this case constitutes
permissible use of military assets for civilian law enforcement. The participation of the
Marines in the conduct of joint visibility patrols is appropriately circumscribed. The
limited participation of the Marines is evident in the provisions of the LOI itself, which
sufficiently provides the metes and bounds of the Marines authority. It is noteworthy that
the local police forces are the ones in charge of the visibility patrols at all times, the real
authority belonging to the PNP. In fact, the Metro Manila Police Chief is the overall
leader of the PNP-Philippine Marines joint visibility patrols.[37] Under the LOI, the police
forces are tasked to brief or orient the soldiers on police patrol procedures. [38] It is their
responsibility to direct and manage the deployment of the Marines.[39] It is, likewise, their
duty to provide the necessary equipment to the Marines and render logistical support to
these soldiers.[40] In view of the foregoing, it cannot be properly argued that military
authority is supreme over civilian authority. Moreover, the deployment of the Marines to
assist the PNP does not unmake the civilian character of the police force. Neither does
it amount to an insidious incursion of the military in the task of law enforcement in
violation of Section 5(4), Article XVI of the Constitution.[41]
In this regard, it is not correct to say that General Angelo Reyes, Chief of Staff of
the AFP, by his alleged involvement in civilian law enforcement, has been virtually
appointed to a civilian post in derogation of the aforecited provision. The real authority in
these operations, as stated in the LOI, is lodged with the head of a civilian institution,
the PNP, and not with the military. Such being the case, it does not matter whether the
AFP Chief actually participates in the Task Force Tulungan since he does not exercise
any authority or control over the same. Since none of the Marines was incorporated or
enlisted as members of the PNP, there can be no appointment to civilian position to
speak of. Hence, the deployment of the Marines in the joint visibility patrols does not
destroy the civilian character of the PNP.
Considering the above circumstances, the Marines render nothing more than
assistance required in conducting the patrols.As such, there can be no insidious
incursion of the military in civilian affairs nor can there be a violation of the civilian
supremacy clause in the Constitution.
It is worth mentioning that military assistance to civilian authorities in various
forms persists in Philippine jurisdiction. The Philippine experience reveals that it is not
averse to requesting the assistance of the military in the implementation and execution
of certain traditionally civil functions. As correctly pointed out by the Solicitor General,
some of the multifarious activities wherein military aid has been rendered, exemplifying
the activities that bring both the civilian and the military together in a relationship of
cooperation, are:
1. Elections;[42]
2. Administration of the Philippine National Red Cross;[43]
3. Relief and rescue operations during calamities and disasters;[44]
4. Amateur sports promotion and development;[45]
5. Development of the culture and the arts;[46]
6. Conservation of natural resources;[47]
7. Implementation of the agrarian reform program;[48]
8. Enforcement of customs laws;[49]
9. Composite civilian-military law enforcement activities;[50]
10. Conduct of licensure examinations;[51]
11. Conduct of nationwide tests for elementary and high school students;[52]
12. Anti-drug enforcement activities;[53]
13. Sanitary inspections;[54]
14. Conduct of census work;[55]
15. Administration of the Civil Aeronautics Board;[56]
16. Assistance in installation of weather forecasting devices;[57]
17. Peace and order policy formulation in local government units.[58]
This unquestionably constitutes a gloss on executive power resulting from a
systematic, unbroken, executive practice, long pursued to the knowledge of Congress
and, yet, never before questioned.[59] What we have here is mutual support and
cooperation between the military and civilian authorities, not derogation of civilian
supremacy.
In the United States, where a long tradition of suspicion and hostility towards the
use of military force for domestic purposes has persisted, [60] and whose Constitution,
unlike ours, does not expressly provide for the power to call, the use of military
personnel by civilian law enforcement officers is allowed under circumstances similar to
those surrounding the present deployment of the Philippine Marines. Under the Posse
Comitatus Act[61] of the US, the use of the military in civilian law enforcement is generally
prohibited, except in certain allowable circumstances. A provision of the Act states:

1385. Use of Army and Air Force as posse comitatus

Whoever, except in cases and under circumstances expressly authorized by


the Constitution or Act of Congress, willfully uses any part of the Army or the
Air Force as posse comitatus or otherwise to execute the laws shall be fined
not more than $10,000 or imprisoned not more than two years, or both.[62]

To determine whether there is a violation of the Posse Comitatus Act in the use of
military personnel, the US courts[63]apply the following standards, to wit:
Were Army or Air Force personnel used by the civilian law enforcement
officers at Wounded Knee in such a manner that the military personnel
subjected the citizens to the exercise of military power which was regulatory,
proscriptive, or compulsory[64]George Washington Law Review, pp. 404-433 (1986), which
discusses the four divergent standards for assessing acceptable involvement of military personnel in civil
law enforcement. See likewise HONORED IN THE BREECH: PRESIDENTIAL AUTHORITY TO
EXECUTE THE LAWS WITH MILITARY FORCE, 83 Yale Law Journal, pp. 130-152, 1973. 64 in nature,
either presently or prospectively?

xxx

When this concept is transplanted into the present legal context, we take it to
mean that military involvement, even when not expressly authorized by the
Constitution or a statute, does not violate the Posse Comitatus Act unless it
actually regulates, forbids or compels some conduct on the part of those
claiming relief. A mere threat of some future injury would be
insufficient.(emphasis supplied)

Even if the Court were to apply the above rigid standards to the present case to
determine whether there is permissible use of the military in civilian law enforcement,
the conclusion is inevitable that no violation of the civilian supremacy clause in the
Constitution is committed. On this point, the Court agrees with the observation of the
Solicitor General:

3. The designation of tasks in Annex A[65] does not constitute the exercise of
regulatory, proscriptive, or compulsory military power. First, the soldiers do not control or direct the
operation. This is evident from Nos. 6,[66] 8(k)[67] and 9(a)[68] of Annex A. These soldiers, second, also
have no power to prohibit or condemn. In No. 9(d)[69] of Annex A, all arrested persons are brought to
the nearest police stations for proper disposition. And last, these soldiers apply no coercive
force. The materials or equipment issued to them, as shown in No. 8(c) [70] of Annex A, are all low
impact and defensive in character. The conclusion is that there being no exercise of regulatory,
proscriptive or compulsory military power, the deployment of a handful of Philippine Marines
constitutes no impermissible use of military power for civilian law enforcement.[71]

It appears that the present petition is anchored on fear that once the armed forces
are deployed, the military will gain ascendancy, and thus place in peril our cherished
liberties. Such apprehensions, however, are unfounded. The power to call the armed
forces is just that - calling out the armed forces. Unless, petitioner IBP can show, which
it has not, that in the deployment of the Marines, the President has violated the
fundamental law, exceeded his authority or jeopardized the civil liberties of the people,
this Court is not inclined to overrule the Presidents determination of the factual basis for
the calling of the Marines to prevent or suppress lawless violence.
One last point. Since the institution of the joint visibility patrol in January, 2000, not
a single citizen has complained that his political or civil rights have been violated as a
result of the deployment of the Marines. It was precisely to safeguard peace, tranquility
and the civil liberties of the people that the joint visibility patrol was conceived. Freedom
and democracy will be in full bloom only when people feel secure in their homes and in
the streets, not when the shadows of violence and anarchy constantly lurk in their midst.
WHEREFORE, premises considered, the petition is hereby DISMISSED.
SO ORDERED.
Davide, Jr., C.J., Melo, Purisima, Pardo, Buena, Gonzaga-Reyes, Ynares-
Santiago, and De Leon, Jr., JJ., concur.
Bellosillo, J., on official leave.
Puno, J., see separate opinion.
Vitug, J., see separate opinion.
Mendoza, J., see concurring and dissenting opinion.
Panganiban, J., in the result.
Quisumbing, J., joins the opinion of J. Mendoza.

SEPARATE OPINION

PUNO, J.:

If the case at bar is significant, it is because of the government attempt to foist


the political question doctrine to shield an executive act done in the exercise of the
commander-in-chief powers from judicial scrutiny. If the attempt succeeded, it would
have diminished the power of judicial review and weakened the checking
authority of this Court over the Chief Executive when he exercises his
commander-in-chief powers. The attempt should remind us of the tragedy that
befell the country when this Court sought refuge in the political question doctrine
and forfeited its most important role as protector of the civil and political rights of
our people. The ongoing conflict in Mindanao may worsen and can force the
Chief Executive to resort to the use of his greater commander-in-chief powers,
hence, this Court should be extra cautious in assaying similar attempts. A laid
back posture may not sit well with our people considering that the 1987
Constitution strengthened the checking powers of this Court and expanded its
jurisdiction precisely to stop any act constituting xxx grave abuse of jurisdiction
xxx on the part of any branch or instrumentality of the Government.1
The importance of the issue at bar includes this humble separate opinion. We can
best perceive the different intersecting dimensions of the political question doctrine by
viewing them from the broader canvass of history. Political questions are defined as
those questions which under the Constitution, are to be decided by the people in their
sovereign capacity, or in regard to which full discretionary authority has been delegated
to the legislative or executive branch of government. 2 They have two aspects: (1) those
matters that are to be exercised by the people in their primary political capacity and (2)
matters which have been specifically delegated to some other department or particular
office of the government, with discretionary power to act. 3 The exercise of the
discretionary power of the legislative or executive branch of government was often the
area where the Court had to wrestle with the political question doctrine. 4
A brief review of some of our case law will thus give us a sharper perspective of the
political question doctrine. This question confronted the Court as early as 1905 in the
case of Barcelon v. Baker.5 The Governor-General of the Philippine Islands, pursuant
to a resolution of the Philippine Commission, suspended the privilege of the writ of
habeas corpus in Cavite and Batangas based on a finding of open insurrection in said
provinces. Felix Barcelon, who was detained by constabulary officers in Batangas, filed
a petition for the issuance of a writ of habeas corpus alleging that there was no open
insurrection in Batangas. The issue to resolve was whether or not the judicial
department may investigate the facts upon which the legislative (the Philippine
Commission) and executive (the Governor-General) branches of government acted in
suspending the privilege of the writ.
The Court ruled that under our form of government, one department has no
authority to inquire into the acts of another, which acts are performed within the
discretion of the other department.6 Surveying American law and jurisprudence, it held
that whenever a statute gives discretionary power to any person, to be exercised by him
upon his own opinion of certain facts, the statute constitutes him the sole judge of the
existence of those facts.7 Since the Philippine Bill of 1902 empowered the Philippine
Commission and the Governor-General to suspend the privilege of the writ of habeas
corpus, this power is exclusively within the discretion of the legislative and executive
branches of government. The exercise of this discretion is conclusive upon the
courts.8
The Court further held that once a determination is made by the executive and
legislative departments that the conditions justifying the assailed acts exists, it will
presume that the conditions continue until the same authority decide that they no longer
exist.9 It adopted the rationale that the executive branch, thru its civil and military
branches, are better situated to obtain information about peace and order from every
corner of the nation, in contrast with the judicial department, with its very limited
machinery.10 The seed of the political question doctrine was thus planted in
Philippine soil.
The doctrine barring judicial review because of the political question doctrine
was next applied to the internal affairs of the legislature. The Court refused to
interfere in the legislative exercise of disciplinary power over its own members.In the
1924 case of Alejandrino v. Quezon,11 Alejandrino, who was appointed Senator by the
Governor-General, was declared by Senate Resolution as guilty of disorderly conduct
for assaulting another Senator in the course of a debate, and was suspended from
office for one year. Senator Alejandrino filed a petition for mandamus and injunction to
compel the Senate to reinstate him. The Court held that under the Jones Law, the
power of the Senate to punish its members for disorderly behavior does not authorize it
to suspend an appointive member from the exercise of his office. While the Court found
that the suspension was illegal, it refused to issue the writ of mandamus on the ground
that "the Supreme Court does not possess the power of coercion to make the Philippine
Senate take any particular action. [T]he Philippine Legislature or any branch thereof
cannot be directly controlled in the exercise of their legislative powers by any judicial
process."12
The issue revisited the Court twenty-two (22) years later. In 1946, in Vera v.
Avelino,13 three senators-elect who had been prevented from taking their oaths of office
by a Senate resolution repaired to this Court to compel their colleagues to allow them to
occupy their seats contending that only the Electoral Tribunal had jurisdiction over
contests relating to their election, returns and qualifications. Again, the Court refused to
intervene citing Alejandrino and affirmed the inherent right of the legislature to
determine who shall be admitted to its membership.
In the 1947 case of Mabanag v. Lopez-Vito,14 three Senators and eight
representatives who were proclaimed elected by Comelec were not allowed by
Congress to take part in the voting for the passage of the Parity amendment to the
Constitution.If their votes had been counted, the affirmative votes in favor of the
proposed amendment would have been short of the necessary three-fourths vote in
either House of Congress to pass the amendment. The amendment was eventually
submitted to the people for ratification. The Court declined to intervene and held that a
proposal to amend the Constitution is a highly political function performed by Congress
in its sovereign legislative capacity.15
In the 1955 case of Arnault v. Balagtas,16 petitioner, a private citizen, assailed the
legality of his detention ordered by the Senate for his refusal to answer questions put to
him by members of one of its investigating committees. This Court refused to order his
release holding that the process by which a contumacious witness is dealt with by the
legislature is a necessary concomitant of the legislative process and the legislature's
exercise of its discretionary authority is not subject to judicial interference.
In the 1960 case of Osmena v. Pendatun,17 the Court followed the traditional line.
Congressman Sergio Osmena, Jr. was suspended by the House of Representatives for
serious disorderly behavior for making a privilege speech imputing "malicious charges"
against the President of the Philippines. Osmena, Jr. invoked the power of review of this
Court but the Court once more did not interfere with Congress' power to discipline its
members.
The contours of the political question doctrine have always been tricky. To be sure,
the Court did not always stay its hand whenever the doctrine is invoked. In the 1949
case of Avelino v. Cuenco,18 Senate President Jose Avelino, who was deposed and
replaced, questioned his successor's title claiming that the latter had been elected
without a quorum. The petition was initially dismissed on the ground that the selection of
Senate President was an internal matter and not subject to judicial review. 19 On
reconsideration, however, the Court ruled that it could assume jurisdiction over the
controversy in light of subsequent events justifying intervention among which was the
existence of a quorum.20 Though the petition was ultimately dismissed, the Court
declared respondent Cuenco as the legally elected Senate President.
In the 1957 case of Tanada v. Cuenco,21 the Court assumed jurisdiction over a
dispute involving the formation and composition of the Senate Electoral Tribunal. It
rejected the Solicitor General's claim that the dispute involved a political question.
Instead, it declared that the Senate is not clothed with "full discretionary authority" in the
choice of members of the Senate Electoral Tribunal and the exercise of its power
thereon is subject to constitutional limitations which are mandatory in nature. 22 It held
that under the Constitution, the membership of the Senate Electoral Tribunal was
designed to insure the exercise of judicial impartiality in the disposition of election
contests affecting members of the lawmaking body.23 The Court then nullified the
election to the Senate Electoral Tribunal made by Senators belonging to the party
having the largest number of votes of two of their party members but purporting to act
on behalf of the party having the second highest number of votes.
In the 1962 case of Cunanan v. Tan, Jr.,24 the Court passed judgment on whether
Congress had formed the Commission on Appointments in accordance with the
Constitution and found that it did not. It declared that the Commission on Appointments
is a creature of the Constitution and its power does not come from Congress but from
the Constitution.
The 1967 case of Gonzales v. Comelec25 and the 1971 case of Tolentino v.
Comelec26 abandoned Mabanag v. Lopez-Vito. The question of whether or not
Congress, acting as a constituent assembly in proposing amendments to the
Constitution violates the Constitution was held to be a justiciable and not a political
issue. In Gonzales, the Court ruled:

"It is true that in Mabanag v. Lopez-Vito, this Court characterizing the issue
submitted thereto as a political one, declined to pass upon the question
whether or not a given number of votes cast in Congress in favor of a
proposed amendment to the Constitution-which was being submitted to the
people for ratification-satisfied the three-fourths vote requirement of the
fundamental law. The force of this precedent has been weakened, however,
by Suanes v. Chief Accountant of the Senate, Avelino v. Cuenco, Tanada v.
Cuenco, and Macias v. Commission on Elections. In the first, we held that the
officers and employees of the Senate Electoral Tribunal are under its
supervision and control, not of that of the Senate President, as claimed by the
latter; in the second, this Court proceeded to determine the number of
Senators necessary for a quorum in the Senate; in the third, we nullified the
election, by Senators belonging to the party having the largest number of
votes in said chamber, purporting to act on behalf of the party having the
second largest number of votes therein, of two (2) Senators belonging to the
first party, as members, for the second party, of the Senate Electoral Tribunal;
and in the fourth, we declared unconstitutional an act of Congress purporting
to apportion the representative districts for the House of Representatives upon
the ground that the apportionment had not been made as may be possible
according to the number of inhabitants of each province. Thus, we rejected
the theory, advanced in these four cases, that the issues therein raised were
political questions the determination of which is beyond judicial review.27

The Court explained that the power to amend the Constitution or to propose
amendments thereto is not included in the general grant of legislative powers to
Congress. As a constituent assembly, the members of Congress derive their authority
from the fundamental law and they do not have the final say on whether their acts are
within or beyond constitutional limits.28This ruling was reiterated in Tolentino which held
that acts of a constitutional convention called for the purpose of proposing amendments
to the Constitution are at par with acts of Congress acting as a constituent assembly. 29
In sum, this Court brushed aside the political question doctrine and assumed
jurisdiction whenever it found constitutionally-imposed limits on the exercise of
powers conferred upon the Legislature.30
The Court hewed to the same line as regards the exercise of Executive
power. Thus, the respect accorded executive discretion was observed in Severino v.
Governor-General,31 where it was held that the Governor-General, as head of the
executive department, could not be compelled by mandamus to call a special election in
the town of Silay for the purpose of electing a municipal president. Mandamus and
injunction could not lie to enforce or restrain a duty which is discretionary. It was held
that when the Legislature conferred upon the Governor-General powers and duties, it
did so for the reason that he was in a better position to know the needs of the country
than any other member of the executive department, and with full confidence that he will
perform such duties as his best judgment dictates.32
Similarly, in Abueva v. Wood,33 the Court held that the Governor-General could not
be compelled by mandamus to produce certain vouchers showing the various
expenditures of the Independence Commission. Under the principle of separation of
powers, it ruled that it was not intended by the Constitution that one branch of
government could encroach upon the field of duty of the other. Each department has an
exclusive field within which it can perform its part within certain discretionary limits. 34 It
observed that "the executive and legislative departments of government are frequently
called upon to deal with what are known as political questions, with which the judicial
department of government has no intervention. In all such questions, the courts
uniformly refused to intervene for the purpose of directing or controlling the actions of
the other department; such questions being many times reserved to those departments
in the organic law of the state."35
In Forties v. Tiaco,36 the Court also refused to take cognizance of a case enjoining
the Chief Executive from deporting an obnoxious alien whose continued presence in the
Philippines was found by him to be injurious to the public interest. It noted that sudden
and unexpected conditions may arise, growing out of the presence of untrustworthy
aliens, which demand immediate action. The President's inherent power to deport
undesirable aliens is universally denominated as political, and this power continues to
exist for the preservation of the peace and domestic tranquility of the nation. 37
In Manalang v. Quitoriano,38 the Court also declined to interfere in the exercise of
the President's appointing power. It held that the appointing power is the exclusive
prerogative of the President, upon which no limitations may be imposed by Congress,
except those resulting from the need of securing concurrence of the Commission on
Appointments and from the exercise of the limited legislative power to prescribe
qualifications to a given appointive office.
We now come to the exercise by the President of his powers as Commander-
in-Chief vis-a-vis the political question doctrine. In the 1940's, this Court has held that
as Commander-in-Chief of the Armed Forces, the President has the power to determine
whether war, in the legal sense, still continues or has terminated. It ruled that it is within
the province of the political department and not of the judicial department of government
to determine when war is at end.39
In 1952, the Court decided the landmark case of Montenegro v.
Castaneda.40 President Quirino suspended the privilege of the writ of habeas corpus for
persons detained or to be detained for crimes of sedition, insurrection or rebellion. The
Court, citing Barcelon, declared that the authority to decide whether the exigency has
arisen requiring the suspension of the privilege belongs to the President and his
decision is final and conclusive on the courts.41
Barcelon was the ruling case law until the 1971 case of Lansang v.
Garcia came.42 Lansang reversed the previous cases and held that the suspension of the
privilege of the writ of habeas corpus was not a political question. According to the
Court, the weight of Barcelon was diluted by two factors: (1) it relied heavily on Martin
v. Mott, which involved the U.S. President's power to call out the militia which is a much
broader power than suspension of the privilege of the writ; and (2) the privilege was
suspended by the American Governor-General whose act, as representative of the
sovereign affecting the freedom of its subjects, could not be equated with that of the
President of the Philippines dealing with the freedom of the sovereign Filipino people.
The Court declared that the power to suspend the privilege of the writ of
habeas corpus is neither absolute nor unqualified because the Constitution sets
limits on the exercise of executive discretion on the matter. These limits are: (1)
that the privilege must not be suspended except only in cases of invasion, insurrection
or rebellion or imminent danger thereof; and (2) when the public safety requires it, in
any of which events the same may be suspended wherever during such period the
necessity for the suspension shall exist. The extent of the power which may be inquired
into by courts is defined by these limitations.43
On the vital issue of how the Court may inquire into the President's exercise of
power, it ruled that the function of the Court is not to supplant but merely to check the
Executive; to ascertain whether the President has gone beyond the constitutional limits
of his jurisdiction, not to exercise the power vested in him or to determine the wisdom of
his act. Judicial inquiry is confined to the question of whether the President did not act
arbitrarily.44 Using this yardstick, the Court found that the President did not.
The emergency period of the 1970's flooded the Court with cases which raised the
political question defense. The issue divided the Court down the middle. Javellana v.
Executive Secretary45 showed that while a majority of the Court held that the issue of
whether or not the 1973 Constitution had been ratified in accordance with the 1935
Constitution was justiciable, a majority also ruled that the decisive issue of whether the
1973 Constitution had come into force and effect, with or without constitutional
ratification, was a political question.46
The validity of the declaration of martial law by then President Marcos was next
litigated before the Court. In Aquino, Jr. v. Enrile,47 it upheld the President's declaration
of martial law. On whether the validity of the imposition of martial law was a political or
justiciable question, the Court was almost evenly divided. One-half embraced the
political question position and the other half subscribed to the justiciable position in
Lansang. Those adhering to the political question doctrine used different methods of
approach to it.48
In 1983, the Lansang ruling was weakened by the Court in Garcia-Padilla v.
Enrile.49 The petitioners therein were arrested and detained by the Philippine
Constabulary by virtue of a Presidential Commitment Order (PCO). Petitioners sought
the issuance of a writ of habeas corpus. The Court found that the PCO had the function
of validating a person's detention for any of the offenses covered in Proclamation No.
2045 which continued in force the suspension of the privilege of the writ of habeas
corpus. It held that the issuance of the PCO by the President was not subject to judicial
inquiry.50 It went further by declaring that there was a need to re-examine Lansang with
a view to reverting to Barcelon and Montenegro. It observed that in times of war or
national emergency, the President must be given absolute control for the very life of the
nation and government is in great peril. The President, it intoned, is answerable only to
his conscience, the people, and God.51
But barely six (6) days after Garcia-Padilla, the Court promulgated Morales, Jr. v.
Enrile52 reiterating Lansang. It held that by the power of judicial review, the Court must
inquire into every phase and aspect of a person's detention from the moment he was
taken into custody up to the moment the court passes upon the merits of the
petition. Only after such a scrutiny can the court satisfy itself that the due process
clause of the Constitution has been met.53
It is now history that the improper reliance by the Court on the political
question doctrine eroded the people's faith in its capacity to check abuses
committed by the then Executive in the exercise of his commander-in-chief
powers, particularly violations against human rights. The refusal of courts to be
pro-active in the exercise of its checking power drove the people to the streets to
resort to extralegal remedies. They gave birth to EDSA.
Two lessons were not lost to the members of the Constitutional Commission that
drafted the 1987 Constitution. The first was the need to grant this Court the express
power to review the exercise of the powers as commander-in-chief by the President
and deny it of any discretion to decline its exercise. The second was the need to
compel the Court to be pro-active by expanding its jurisdiction and, thus, reject its laid
back stance against acts constituting grave abuse of discretion on the part of any
branch or instrumentality of government. Then Chief Justice Roberto Concepcion, a
member of the Constitutional Commission, worked for the insertion of the second
paragraph of Section 1, Article VIII in the draft Constitution,54 which reads:

"Sec. 1. x x x.
Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and
enforceable, and to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the
part of any branch or instrumentality of the Government."

The language of the provision clearly gives the Court the power to strike down acts
amounting to grave abuse of discretion of both the legislative and executive branches
of government.
We should interpret Section 18, Article VII of the 1987 Constitution in light of our
constitutional history. The provision states:

"Sec. 18. The President shall be the Commander-in-Chief of all armed


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

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

The Supreme Court may review, in an appropriate proceeding filed by


any citizen, the sufficiency of the factual basis of the proclamation of
martial law or the suspension of the privilege of the writ or the extension
thereof, and must promulgate its decision thereon within thirty days
from its filing.

x x x."
It is clear from the foregoing that the President, as Commander-in-Chief of the
armed forces of the Philippines, may call out the armed forces subject to two
conditions: (1) whenever it becomes necessary; and (2) to prevent or suppress
lawless violence, invasion or rebellion. Undeniably, these conditions lay down
the sine qua requirement for the exercise of the power and the objective sought to
be attained by the exercise of the power. They define the constitutional
parameters of the calling out power. Whether or not there is compliance with
these parameters is a justiciable issue and is not a political question.
I am not unaware that in the deliberations of the Constitutional Commission,
Commissioner Bernas opined that the President's exercise of the "calling out power,"
unlike the suspension of the privilege of the writ of habeas corpus and the declaration of
martial law, is not a justiciable issue but a political question and therefore not subject to
judicial review.
It must be borne in mind, however, that while a member's opinion expressed on the
floor of the Constitutional Convention is valuable, it is not necessarily expressive of the
people's intent.55 The proceedings of the Convention are less conclusive on the proper
construction of the fundamental law than are legislative proceedings of the proper
construction of a statute, for in the latter case it is the intent of the legislature the courts
seek, while in the former, courts seek to arrive at the intent of the peoplethrough the
discussions and deliberations of their representatives.56 The conventional wisdom is that
the Constitution does not derive its force from the convention which framed it, but from
the people who ratified it, the intent to be arrived at is that of the people. 57
It is true that the third paragraph of Section 18, Article VII of the 1987
Constitution expressly gives the Court the power to review the sufficiency of the
factual bases used by the President in the suspension of the privilege of the writ
of habeas corpus and the declaration of martial law. It does not follow, however,
that just because the same provision did not grant to this Court the power to
review the exercise of the calling out power by the President, ergo, this Court
cannot pass upon the validity of its exercise.
Given the light of our constitutional history, this express grant of power
merely means that the Court cannot decline the exercise of its power because of
the political question doctrine as it did in the past. In fine, the express grant
simply stresses the mandatory duty of this Court to check the exercise of the
commander-in-chief powers of the President. It eliminated the discretion of the
Court not to wield its power of review thru the use of the political question
doctrine.
It may be conceded that the calling out power may be a "lesser power" compared to
the power to suspend the privilege of the writ of habeas corpus and the power to
declare martial law. Even then, its exercise cannot be left to the absolute discretion of
the Chief Executive as Commander-in-Chief of the armed forces, as its impact on the
rights of our people protected by the Constitution cannot be downgraded. We cannot
hold that acts of the commander-in-chief cannot be reviewed on the ground that they
have lesser impact on the civil and political rights of our people. The exercise of the
calling out power may be "benign" in the case at bar but may not be so in future cases.
The counsel of Mr. Chief Justice Enrique M. Fernando, in his Dissenting and
Concurring Opinion in Lansang that it would be dangerous and misleading to push the
political question doctrine too far, is apropos. It will not be complementary to the Court
if it handcuffs itself to helplessness when a grievously injured citizen seeks relief from a
palpably unwarranted use of presidential or military power, especially when the question
at issue falls in the penumbra between the "political" and the "justiciable. " 58
We should not water down the ruling that deciding whether a matter has been
committed by the Constitution to another branch of government, or whether the action of
that branch exceeds whatever authority has been committed, is a delicate exercise in
constitutional interpretation, and is a responsibility of the Court as ultimate
interpreter of the fundamental law.59 When private justiciable rights are involved in a
suit, the Court must not refuse to assume jurisdiction even though questions of extreme
political importance are necessarily involved.60 Every officer under a constitutional
government must act according to law and subject to the controlling power of the
people, acting through the courts, as well as through the executive and legislative. One
department is just as representative of the other, and the judiciary is the department
which is charged with the special duty of determining the limitations which the law
places upon all official action.61 This historic role of the Court is the foundation stone
of a government of laws and not of men.62
I join the Decision in its result.

SEPARATE OPINION

VITUG, J.:

In the equation of judicial power, neither of two extremes - one totalistic and the
other bounded - is acceptable nor ideal.The 1987 Constitution has introduced its
definition of the term "judicial power" to be that which -

x x x includes the duty of the courts of justice to settle actual controversies


involving rights which are legally demandable and enforceable, and to
determine whether or not there has been grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government.1

It is not meant that the Supreme Court must be deemed vested with the awesome
power of overseeing the entire bureaucracy, let alone of institutionalizing judicial
absolutism, under its mandate. But while this Court does not wield unlimited authority to
strike down an act of its two co-equal branches of government, it must not wither under
technical guise on its constitutionally ordained task to intervene, and to nullify if need
be, any such act as and when it is attended by grave abuse of discretion amounting to
lack or excess of jurisdiction. The proscription then against an interposition by the Court
into purely political questions, heretofore known, no longer holds within that context.
Justice Feria, in the case of Avelino vs. Cuenco, 2 has aptly elucidated in his
concurring opinion:

"x x x [I] concur with the majority that this Court has jurisdiction over cases like
the present x x x so as to establish in this country the judicial supremacy, with
the Supreme Court as the final arbiter, to see that no one branch or agency of
the government transcends the Constitution, not only in justiceable but
political questions as well."3

It is here when the Court must have to depart from the broad principle of separation of
powers that disallows an intrusion by it in respect to the purely political decisions of its
independent and coordinate agencies of government.
The term grave abuse of discretion is long understood in our jurisprudence as
being, and confined to, a capricious and whimsical or despotic exercise of judgment
amounting to lack or excess of jurisdiction. Minus the not-so-unusual exaggerations
often invoked by litigants in the duel of views, the act of the President in simply calling
on the Armed Forces of the Philippines, an executive prerogative, to assist the
Philippine National Police in "joint visibility patrols" in the metropolis does not, I
believe, constitute grave abuse of discretion that would now warrant an exercise by the
Supreme Court of its extraordinary power as so envisioned by the fundamental law.
Accordingly, I vote for the dismissal of the petition.

MENDOZA, J., concurring and dissenting:

I concur in the opinion of the Court insofar as it holds petitioner to be without


standing to question the validity of LOI 02/2000 which mandates the Philippine Marines
to conduct "joint visibility" patrols with the police in Metro Manila. But I dissent insofar as
the opinion dismisses the petition in this case on other grounds. I submit that judgment
on the substantive constitutional issues raised by petitioner must await an actual case
involving real parties with "injuries" to show as a result of the operation of the
challenged executive action. While as an organization for the advancement of the rule
of law petitioner has an interest in upholding the Constitution, its interest is
indistinguishable from the interest of the rest of the citizenry and falls short of that which
is necessary to give petitioner standing.
As I have indicated elsewhere, a citizens' suit challenging the constitutionality of
governmental action requires that (1) the petitioner must have suffered an "injury in fact"
of an actual or imminent nature; (2) there must be a causal connection between the
injury and the conduct complained of; and (3) the injury is likely to be redressed by a
favorable action by this Court.1 The "injury in fact" test requires more than injury to a
cognizable interest. It requires that the party seeking review be himself among those
injured.2
My insistence on compliance with the standing requirement is grounded in the
conviction that only a party injured by the operation of the governmental action
challenged is in the best position to aid the Court in determining the precise nature of
the problem presented. Many a time we have adverted to the power of judicial review as
an awesome power not to be exercised save in the most exigent situation. For, indeed,
sound judgment on momentous constitutional questions is not likely to be reached
unless it is the result of a clash of adversary arguments which only parties with direct
and specific interest in the outcome of the controversy can make. This is true not only
when we strike down a law or official action but also when we uphold it.
In this case, because of the absence of parties with real and substantial interest to
protect, we do not have evidence on the effect of military presence in malls and
commercial centers, i.e., whether such presence is coercive or benign. We do not know
whether the presence of so many marines and policemen scares shoppers, tourists,
and peaceful civilians, or whether it is reassuring to them. To be sure, the deployment of
troops to such places is not like parading them at the Luneta on Independence
Day. Neither is it, however, like calling them out because of actual fighting or the
outbreak of violence.
We need to have evidence on these questions because, under the Constitution, the
President's power to call out the armed forces in order to suppress lawless violence,
invasion or rebellion is subject to the limitation that the exercise of this power is required
in the interest of public safety.3
Indeed, whether it is the calling out of the armed forces alone in order to suppress
lawless violence, invasion or rebellion or also the suspension of the privilege of the writ
of habeas corpus or the proclamation of martial law (in case of invasion or rebellion),
the exercise of the President's powers as commander-in-chief, requires proof - not mere
assertion.4 As has been pointed out, "Standing is not `an ingenious academic exercise
in the conceivable' . . . but requires . . . a factual showing of perceptible harm."5
Because of the absence of such record evidence, we are left to guess or even
speculate on these questions. Thus, at one point, the majority opinion says that what is
involved here is not even the calling out of the armed forces but only the use of marines
for law enforcement. (p. 13) At another point, however, the majority opinion somersaults
and says that because of bombings perpetrated by lawless elements, the deployment of
troops in shopping centers and public utilities is justified. (p. 24)
We are likely to err in dismissing the suit brought in this case on the ground that the
calling out of the military does not violate the Constitution, just as we are likely to do so
if we grant the petition and invalidate the executive issuance in question.For indeed, the
lack of a real, earnest and vital controversy can only impoverish the judicial
process. That is why, as Justice Laurel emphasized in the Angara case, "this power of
judicial review is limited to actual cases and controversies to be exercised after full
opportunity of argument by the parties, and limited further to the constitutional question
raised or the very lis mota presented."6
We are told, however, that the issues raised in this case are of "paramount interest"
to the nation. It is precisely because the issues raised are of paramount importance that
we should all the more forego ruling on the constitutional issues raised by petitioner and
limit the dismissal of this petition on the ground of lack of standing of petitioner. A
Fabian policy of leaving well enough alone is a counsel of prudence.
For these reasons and with due appreciation of the scholarly attention lavished by
the majority opinion on the constitutional questions raised, I am constrained to limit my
concurrence to the dismissal of this suit on the ground of lack of standing of petitioner
and the consequent lack of an actual case or controversy.

1
Sec. 1, Article VIII, 1987 Constitution.
2
Tanada v. Cuenco, 103 Phil. 1051, 1067 [1957], citing 16 C.J.S. 413.
3
Tanada v. Cuenco, supra, 1067, quoting In re McConaughy, 119 NW 408 [1909].
4
Bernas, The 1987 Constitution of the Republic of the Philippines A Commentary, p. 859 [1996].
5
5 Phil. 87 [1905].
6
Id. at 97.
7
Id. at 104.
8
See Cruz, Philippine Political law, p. 87 [1998].
9
Id. at 113-114.
10
Id. at 106-107.
11
46 Phil. 83 [1924].
12
Id. at 97.
13
77 Phil. 192 [1946].
14
78 Phil. 1 [1947].
15
Id. at 4-5. The court also adopted the enrolled bill theory which, like findings under the political question doctrine,
imports absolute verity on the courts-at 12.
16
97 Phil. 358 [1955].
17
109 Phil. 863 [1960].
18
83 Phil. 17 [1949].
19
Id. at 21-22.
20
Id. at 68-69.
21
103 Phil. 1051 [1957].
22
Id. at 1068.
23
Id. at 1083.
24
5 SCRA 1 [1962].
25
21 SCRA 774 [1967].
26
41 SCRA 702 [1971].
27
Id. at 785-786.
28
Id. at 787.
29
41 SCRA at 713.
30
Bernas, The 1987 Constitution of the Republic of the Philippines A Commentary, p. 861 [1996].
31
16 Phil. 366 [1910].
32
Id. at 401.
33
45 Phil. 612 [1924].
34
Id. At 630.
35
Id. at 637-638.
36
16 Phil. 534 [1910].
37
Id. at 568-569, 576.
38
94 Phil. 903 [1954].
39
Untal v. Chief of Staff, AFP, 84 Phil. 586 [1949]; Raquiza v. Bradford, 75 Phil. 50 [1945].
40
91 Phil. 882 [1952].
41
Id. at 887.
42
42 SCRA 448 [1971].
43
Id. at 474.
44
Id. at 480-481.
45
50 SCRA 30 [1973].
46
Id. at 138, 140-141.
47
59 SCRA 183 [1973].
48
Ibid.
49
121 SCRA 472 [1983].
50
Id. at 490-491.
51
Id. at 500-501.
52
121 SCRA 538 [1983].
53
Id. at 563.
54
See Concepcions sponsorship speech, I Record 434-435; see also Bernas, the Constitution of the Republic of the
Philippines A Commentary, p. 863 [1996].
55
J.M. Tuason & Co., Inc. v. Land Tenure Administration, 31 SCRA 413, 423-426 [1970].
56
Vera v. Avelino, 77 Phil. 192, 215 [1946]; see also Agpalo, Statutory Construction, 4th ed., p. 454 [1998].
57
Black, Handbook on the Construction and Interpretation of the laws, 2d ed., p. 39 [1911].
58
SCRA at 506-507, see also Rossiter, The Supreme Court and the Commander-in-Chief, pp. 16-17 [1951].
59
Baker v. Carr, 7 L Ed 2d at 682.
60
Willoughby on the Constitution of the United States, vol. 3, 2d ed., p. 1336 [1929].
61
Tanada v. Macapagal, 103 Phil. At 1067, quoting In re McConaughy, 119 NW 408 [1909].
62
Id.
1
Section 1, Article VIII of the Constitution.
2
83 Phil. 17.
3
Sen. Miriam Defensor Santiago, et al. vs. Sen. Teofisto Guingona, Jr., et al., 298 SCRA 756.
1
Tatad v. Garcia, 243 SCRA 436, 473 (1995) (concurring). Accord, Telecommunication and Broadcast Attorneys of
the Philippines v. COMELEC, 289 SCRA 343 (1998).
2
Lujan v. Defenders of Wildlife, 504 U.S. 555, 119 L. Ed. 2d 351 (1992).
3
See CONST., ART. VII, 18.
4
See Lansang v. Garcia, 42 SCRA 448 (1971).
5
Lujan v. Defenders of Wildlife, supra.
6
Angara v. Electoral Commission, 63 Phil. 139, 158 (1936)

[1]
Rollo, pp. 17-21.
[2]
As of 19 May 2000, the Marines have been recalled from their areas of deployment to join the military operations
in Mindanao, and replaced by Air Force personnel who took over their functions in the joint visibility patrols. The
Air Force personnel, just like the Marines, were ordered to assist the PNP, also by virtue of LOI 2/2000.Since both
the Marines and Air Force belong to the Armed Forces, the controversy has not been rendered moot and academic
by the replacement of the former by the latter. The validity of the deployment of the armed forces in the joint
visibility patrols thus remain an issue.
[3]
Rollo, pp. 75-76.
[4]
Id., at 75.
[5]
Id.
[6]
Id.
[7]
Rollo, p. 75.
[8]
Id., at 17-18.
[9]
Id.
[10]
Rollo, p. 7.
[11]
Id., at 24.
[12]
Philippine Constitution Association v. Enriquez, 235 SCRA 506 (1994) citing Luz Farms v. Secretary of
the Department of Agrarian Reform, 192 SCRA 51 (1990); Dumlao v. Commission on Elections, 95 SCRA 392
(1980); and, People v. Vera, 65 Phil. 56 (1937).
[13]
Joya v. Presidential Commission on Good Govenment, 225 SCRA 568, 576 (1993).
[14]
Ibid., citing House International Building Tenants Association, Inc. v. Intermediate Appellate Court, 151 SCRA
703 (1987).
[15]
Baker v. Carr, 369 U.S. 186, 82 S. Ct. 691, 7L. Ed. 2d 663, 678 (1962).
[16]
Joya v. Presidential Commission on Good Government, supra note 13, at 579 citing Dumlao v. Commission
on Elections, 95 SCRA 392 (1980).
[17]
Tatad v. Secretary of the Department of Energy, 281 SCRA 330, 349 (1997) citing Garcia v. Executive Secretary,
211 SCRA 219 (1992); Osmea v. COMELEC, 199 SCRA 750 (1991); Basco v. Pagcor, 197 SCRA 52 (1991); and,
Araneta v. Dinglasan, 84 Phil. 368 (1949).
[18]
Santiago v. COMELEC, 270 SCRA 106 (1997); Joya v. Presidential Commission on Good Government, 225
SCRA 568 (1993); Daza v. Singson, 180 SCRA 496 (1989). As formulated by Mr. Justice (now Chief Justice)
Hilario G. Davide, Jr. in Kilosbayan, Inc. vs. Guingona, Jr., [232 SCRA 110 (1994)] "(a) party's standing before this
Court is a procedural technicality which it may, in the exercise of its discretion, set aside in view of the importance
of the issues raised," favorably citing our ruling in the Emergency Powers Cases [L-2044 (Araneta v. Dinglasan); L-
2756 (Araneta v. Angeles); L-3054 (Rodriquez v. Tesorero de Filipinas); and L-3056 (Barredov. COMELEC), 84
Phil. 368 (1940)] where this Court brushed aside this technicality because "the transcendental importance to the
public of these cases demands that they be settled promptly and definitely, brushing aside, if we must, technical
rules of procedure." An inflexible rule on locus standi would result in what Mr. Justice Florentino P. Feliciano aptly
described as a doctrinal ball and chain xxx clamped on our own limbs." [Kilosbayan, Inc. v. Morato, 250 SCRA 130
(1995)].
[19]
Rollo, p. 12
[20]
Article II, Sections 4 and 5 of the Constitution provide:
Sec. 4. The prime duty of the Government is to serve and protect the people. The Government may call upon the
people to defend the State and, in the fulfillment thereof, all citizens may be required, under conditions provided by
law, to render personal, military or civil service.
Sec. 5. The maintenance of peace and order, the protection of life, liberty, and property, and the promotion of the
general welfare are essential for the enjoyment by all the people of the blessings of democracy.
[21]
177 SCRA 668, 694 (1989).
[22]
WESTS LEGAL THESAURUS/DICTIONARY (Special Deluxe Edition) p. 440 (1986).
[23]
103 Phil. 1051 (1957).
[24]
369 U.S. 186, 82 S ct. 691, 7 L. Ed. 2d 663, 678 (1962).
[25]
Article VIII, Sec. 1 of the 1987 CONSTITUTION.
[26]
Santiago v. Guingona, Jr., 298 SCRA 756 (1998).
[27]
Bengzon, Jr. v. Senate Blue Ribbon Committee, 203 SCRA 767 (1991).
[28]
Marcos v. Manglapus,, supra note 21, see also Daza v. Singson, 180 SCRA 496 (1988); Coseteng v. Mitra, 187
SCRA 377 (1990).
[29]
Sinon v. Civil Service Commission, 215 SCRA 410 (1992); See also Producers Bank v. NLRC, 165 SCRA 284
(1988); Litton Mills v. Galleon Trader, Inc., 163 SCRA 494 (1988).
[30]
Ledesma v. Court of Appeals, 278 SCRA 659 (1997).
[31]
Bondoc v. Pineda, 201 SCRA 792 (1991).
[32]
Drilon v. Lim, 235 SCRA 135 (1994).
[33]
Sarmiento v. Mison, 156 SCRA 549 (1987).
[34]
II RECORD OF THE CONSTITUTIONAL COMMISSION: PROCEEDINGS AND DEBATES, pp. 409, 412
(1986).
[35]
Rollo, p. 75.
[36]
Section 3, provides:
Civilian authority, is at all times, supreme over the military. The Armed Forces of the Philippines is the protector of
the people and the State. Its goal is to secure the sovereignty of the State and the integrity of the national territory.
[37]
No. 9 of the LOI provides: COORDINATING INSTRUCTIONS:
a. RD, NCRPO is designated as Task Force Commander TULUNGAN.
[38]
No. 6 of the LOI states: DEPLOYMENT/EMPLOYMENT OF JOINT NCRPO-PHILIPPINE MARINES:
b. Before their deployment/employment, receiving units shall properly brief/orient the troops on police
patrol/visibility procedures.
[39]
No. 8 of the LOI provides: TASKS:
k. POLICE DISTRICTS/STATIONS
-Provide direction and manage the deployment of all Philippine Marines personnel deployed in your AOR for police
visibility operations.
-Conduct briefing/orientation to Philippine Marines personnel on the dos and donts of police visibility patrols.
-Provide transportation to Philippine Marines from districts headquarters to different stations and PCPs.
-Perform other tasks as directed.
[40]
No. 8 of the LOI states: TASKS:
c. RLD/R4
-Coordinate with the Directorate for Logistics for the issuance of the following equipments (sic) to be utilize (sic)
by the Philippine Marines personnel: 500 pieces Probaton, 500 whistle (sic), 500 pieces brazzard blazoned.
-Coordinate with the Directorate for Logistics for the issuance of the following for use of PNP personnel involved in
the visibility patrol operations:
1,000 sets of PNP GOA Uniform
500 each raincoats
500 each Probaton
500 each Whistle
500 each handcuffs
500 each Combat Boots
500 each low cut shoes
-Provide transportation to the Philippine Marines personnel in coordination with LSS, NHQ PNP.
-Provide additional gas allocation to Philippine Marines members of the Inspection Teams.
- Perform other tasks as directed.40
[41]
Sec. 5(4), Article XVI, provides:
No member of the Armed Forces in the active service shall, at any time, be appointed in the government including
government-owned and controlled corporations or any of their subsidiaries.
[42]
CONSTITUTION, Article IX-C, Section 2; Comelec Resolution No. 3071 (1999), which is entitled In Re
Guidelines for the Designation of Registration Centers and the Accountable Officers for the Polaroid Instant
Cameras for Purposes of the Registration of Voters on 8-9 May 1999 in the Autonomous Region in Muslim
Mindanao; Comelec Resolution No. 3059 (1999), which is entitled, In the Matter of Deputizing the Armed Forces of
the Philippines and the Three (3) AFP Components, Namely: Philippine Army, Philippine Navy and Philippine Air
Force, for the Purpose of Ensuring Free, Orderly, Honest and Peaceful Precinct Mapping, Registration of Voters and
the Holding of the September 13, 1999 Elections in the Autonomous Region in Muslim Mindanao
(ARMM); Republic Act No. 7166 (1991), Section 33, which is entitled An Act Providing for Synchronized National
and Local Elections and for Electoral Reforms, Authorizing Appropriations therefor, and for other Purposes;
Administrative Code of 1987, Book V, Title I, Subtitle C, Chapter 1, Sections 2 (4) and 3; Batas Pambansa Blg.
881, Article VI, Sections 52 (b) and 57 (3) (1985), which is also known as Omnibus Election Code.
[43]
Republic Act No. 95 (1947), Section 5, which is entitled An Act to Incorporate the Philippine National Red
Cross Section; Republic Act No. 855 (1953), Section 1, which is entitled An Act to Amend Section V of Republic
Act Numbered Ninety-Five, entitled An Act to Incorporate the Philippine National Red Cross.
[44]
Republic Act No. 7077 (1991), Article III, Section 7, which is entitled An Act Providing for the Development,
Administration, Organization, Training, Maintenance and Utilization of the Citizen Armed Forces of the Armed
Forces of the Philippines and for other Purposes.
[45]
Republic Act No. 6847 (1990), Section 7, which is entitled An Act Creating and Establishing The Philippine
Sports Commission, Defining its Powers, Functions and Responsibilities, Appropriating Funds therefor, and for
other Purposes.
[46]
Republic Act No. 8492 (1998), Section 20, which is entitled An Act Establishing a National Museum System,
Providing for its Permanent Home and for other Purposes.
[47]
Republic Act No. 8550 (1998), Section 124, which is entitled An Act Providing for the Development,
Management and Conservation of the Fisheries and Aquatic Resources, Integrating All Laws Pertinent Thereto, and
for other Purposes; Memorandum Circular No. 150 (1996), which is entitled Amending Memorandum Circular No.
128, dated July 20, 1995 by Reorganizing the Presidential Task Force on Tubbataha Reef National Marine
Park; Executive Order No. 544 (1979), Letter I, which is entitled Creating a Presidential Committee for the
Conservation of the Tamaraw, Defining its Powers and for other Purposes.
[48]
Executive Order No. 129-A (1987) Section 5 (m), which is entitled Modifying Executive Order No. 129
Reorganizing and Strengthening the Department of Agrarian Reform and for other Purposes.
[49]
Republic Act No. 1937 (1957), Section 2003, which is entitled An Act to Revised and Codify the Tariff and
Customs Laws of the Philippines; Executive Order No. 45 (1998), which is entitled Creating a Presidential Anti-
Smuggling Task Force to Investigate and Prosecute Crimes Involving Large-Scale Smuggling and other Frauds
upon Customs and Providing Measures to Expedite Seizure Proceedings;
[50]
These cases involved joint military and civilian law enforcement operations: People v. Escalante, G.R No.
106633, December 1, 1994; People v. Bernardo, G.R. No. 97393, March 17, 1993; People v. De la Cruz, G.R. No.
83260, April 18, 1990; Guanzon v. de Villa, 181 SCRA 623, 631 (1990). (This case recognizes the complementary
roles of the PNP and the military in conducting anti-crime campaigns, provided that the peoples rights are not
violated in these words: If the military and the police must conduct concerted campaigns to flush out and catch
criminal elements, such drives must be consistent with the constitutional and statutory rights of all people affected
by such actions. The creation of the Task Force also finds support in Valmonte v. de Villa, 185 SCRA 665
(1990). Executive Order No. 62 (1999), which is entitled Creating the Philippine Center on Transnational Crime to
Formulate and Implement a Concerted Program of Action of All Law Enforcement, Intelligence and other Agencies
for the Prevention and Control of Transnational Crime; Executive Order No. 8 (1998), which is entitled Creating a
Presidential Anti-Organized Crime Commission and a Presidential Anti-Organized Crime Task Force, to Investigate
and Prosecute Criminal Elements in the Country; Executive Order No. 280 (1995), which is entitled Creating a
Presidential Task Force of Intelligence and Counter-Intelligence to Identify, Arrest and Cause the Investigation and
Prosecution of Military and other Law Enforcement Personnel on their Former Members and Their Cohorts
Involved in Criminal Activities.
[51]
Memorandum Circular No. 141 (1996), which is entitled Enjoining Government Agencies Concerned to Extend
Optimum Support and Assistance to the Professional Regulation Commission in its Conduct of Licensure
Examinations.
[52]
Memorandum Circular No. 32 (1999), which is entitled Directing the Government Agencies Concerned to
Extend Maximum Support and Assistance to the National Educational Testing and Research Center (NETRC) of the
Department of Education, Culture and Sports (DECS) in the Conduct of Tests of National Coverage.
[53]
Executive Order No. 61 (1999), which is entitled Creating the National Drug Law Enforcement and Prevention
Coordinating Center to Orchestrate Efforts of national Government Agencies, Local Government Units, and Non-
Government Organizations for a More Effective Anti-Drug Campaign.
[54]
Republic Act No. 4089 (1964), which is entitled An Act Making the City Health Officer of Bacolod City the
Local Civil Registrar, Amending for the Purpose Section Forty-Three of the Charter of said City;" Republic Act No.
537 (1950), which is entitled "An Act to Revise the Charter of Quezon City; Commonwealth Act No. 592 (1940),
which is entitled An Act to Create the City of Dansalan; Commonwealth Act No. 509 (1939), which is entitled An
Act to Create Quezon City; Commonwealth Act No. 326 (1938), which is entitled An Act Creating the City of
Bacolod; Commonwealth Act No. 39 (1936), which is entitled An Act Creating the City of Zamboanga;
Commonwealth Act No. 51 (1936), which is entitled An Act Creating the City of Davao.
[55]
Republic Act No. 36 (1946), which is entitled Census Act of Nineteen Hundred and Forty-Six.
[56]
Republic Act No. 776 (1952), Section 5, which is entitled An Act to Reorganize the Civil Aeronautics Board and
the Civil Aeronautics Administration, To Provide for the Regulation of Civil Aeronautics in the Philippines and
Authorizing the Appropriation of Funds Therefor.
[57]
Republic Act No. 6613 (1972), Section 4, which is entitled An Act Declaring a Policy of the State to Adopt
Modern Scientific Methods to Moderate Typhoons and Prevent Destruction by Floods, Rains and Droughts,
Creating a Council on Typhoons and Prevent Destruction by Flood, Rains and Droughts, Creating a Council on
Typhoon Moderation and Flood Control Research and Development, Providing for its Powers and Functions and
Appropriating Funds Therefor.
[58]
Local Government Code of 1991, Book I, Title Seven, Section 116.
[59]
This theory on gloss of executive power was advanced by Justice Frankfurter in his concurring opinion
in Youngstown Sheet and Tube v. Sawyer, 343 US 579, 610-611 (1952).
[60]
Bissonette v. Haig, 766 F.2d 1384, 1389 (1985).
[61]
18 U.S.C.A 1385 (1878).
[62]
Ibid.
[63]
Bissonette v. Haig, supra note 60, at 1390.
[64]
A power regulatory in nature is one which controls or directs. It is proscriptive if it prohibits or condemns
and compulsory if it exerts some coercive force. See US v. Yunis, 681 F.Supp. 891 (D.D.C., 1988). See also
FOURTH AMENDMENT AND POSSE COMITATUS ACT RESTRICTIONS ON MILITARY INVOLVEMENT
IN CIVIL LAW ENFORCEMENT,
[65]
L.O.I. 02/2000, TULUNGAN, Rollo, pp. 17-22.

[66]
No. 6 of the LOI states: DEPLOYMENT/EMPLOYMENT OF JOINT NCRPO-PHILIPPINE MARINES:

a. The PNP NCPRO thru Police Districts will continue to deploy uniformed PNP personnel dedicated for police
visibility patrols in tandem with the Philippine Marines.
b. Before their deployment/employment, receiving units shall properly brief/orient the troops on police
patrol/visibility procedures.66
[67]
Supra note 34.
[68]
Supra note 32.

[69]
No. 9 of the LOI states:

d. In case of apprehensions, arrested person/s shall be brought to the nearest police stations/PCPs.
[70]
Supra note 35.
[71]
Rollo, p. 70.

UP v. Dizon (G.R. No. 171182;


August 23, 2012)

CASE DIGEST: UNIVERSITY OF THE PHILIPPINES, et al. v. HON. AGUSTIN S.


DIZON, et al.

FACTS: University of the Philippines (UP) entered into a General Construction Agreement with
respondent Stern Builders Corporation (Stern Builders) for the construction and renovation of the
buildings in the campus of the UP in Los Bas. UP was able to pay its first and second billing.
However, the third billing worth P273,729.47 was not paid due to its disallowance by the
Commission on Audit (COA). Thus, Stern Builders sued the UP to collect the unpaid balance.

On November 28, 2001, the RTC rendered its decision ordering UP to pay Stern Builders. Then
on January 16, 2002, the UP filed its motion for reconsideration. The RTC denied the motion.
The denial of the said motion was served upon Atty. Felimon Nolasco (Atty.Nolasco) of the
UPLB Legal Office on May 17, 2002. Notably, Atty. Nolasco was not the counsel of record of
the UP but the OLS inDiliman, Quezon City.

Thereafter, the UP filed a notice of appeal on June 3, 2002. However, the RTC denied due course
to the notice of appeal for having been filed out of time. On October 4, 2002, upon motion of
Stern Builders, the RTC issued the writ of execution.

On appeal, both the CA and the High Court denied UPs petition. The denial became final
and executory. Hence, Stern Builders filed in the RTC its motion for execution despite their
previous motion having already been granted and despite the writ of execution having already
issued. On June 11, 2003, the RTC granted another motion for execution filed on May 9, 2003
(although the RTC had already issued the writ of execution on October 4, 2002). Consequently,
the sheriff served notices of garnishment to the UPs depositary banks and the RTC ordered the
release of the funds.

Aggrieved, UP elevated the matter to the CA. The CA sustained the RTC. Hence, this petition.

ISSUES:

I. Was UP's funds validly garnished?


II. Has the UP's appeal dated June 3, 2002 been filed out of time?

HELD: UP's funds, being government funds, are not subject to garnishment. (Garnishment
of public funds; suability vs. liability of the State)

Despite its establishment as a body corporate, the UP remains to be a "chartered institution"


performing a legitimate government function. Irrefragably, the UP is a government
instrumentality, performing the States constitutional mandate of promoting quality and
accessible education. As a government instrumentality, the UP administers special funds sourced
from the fees and income enumerated under Act No. 1870 and Section 1 of Executive Order No.
714, and from the yearly appropriations, to achieve the purposes laid down by Section 2 of Act
1870, as expanded in Republic Act No. 9500. All the funds going into the possession of the UP,
including any interest accruing from the deposit of such funds in any banking institution,
constitute a "special trust fund," the disbursement of which should always be aligned with the
UPs mission and purpose, and should always be subject to auditing by the COA. The funds of
the UP are government funds that are public in character. They include the income accruing from
the use of real property ceded to the UP that may be spent only for the attainment of its
institutional objectives.

A marked distinction exists between suability of the State and its liability. As the Court
succinctly stated in Municipality of San Fernando, La Union v. Firme: A distinction should first
be made between suability and liability. "Suability depends on the consent of the state to be sued,
liability on the applicable law and the established facts. The circumstance that a state is suable
does not necessarily mean that it is liable; on the other hand, it can never be held liable if it does
not first consent to be sued. Liability is not conceded by the mere fact that the state has allowed
itself to be sued. When the state does waive its sovereign immunity, it is only giving the plaintiff
the chance to prove, if it can, that the defendant is liable.

The Constitution strictly mandated that "no money shall be paid out of the Treasury except in
pursuance of an appropriation made by law." The execution of the monetary judgment against
the UP was within the primary jurisdiction of the COA. It was of no moment that a final
and executory decision already validated the claim against the UP.

HELD: The period of appeal did not start without effective service of decision upon counsel
of record. (The doctrine of immutability of a final judgment; service of judgments; fresh-
period rule; computation of time)

At stake in the UPs plea for equity was the return of the amount of P16,370,191.74 illegally
garnished from its trust funds. Obstructing the plea is the finality of the judgment based on the
supposed tardiness of UPs appeal, which the RTC declared on September 26, 2002. It is true that
a decision that has attained finality becomes immutable and unalterable, and cannot be modified
in any respect, even if the modification is meant to correct erroneous conclusions of fact and law,
and whether the modification is made by the court that rendered it or by this Court as the highest
court of the land. But the doctrine of immutability of a final judgment has not been absolute, and
has admitted several exceptions, among them: (a) the correction of clerical errors; (b) the so-
called nunc pro tunc entries that cause no prejudice to any party; (c) void judgments; and (d)
whenever circumstances transpire after the finality of the decision that render its execution unjust
and inequitable. We rule that the UPs plea for equity warrants the Courts exercise of the
exceptional power to disregard the declaration of finality of the judgment of the RTC for being in
clear violation of the UPs right to due process.

Firstly, the service of the denial of the motion for reconsideration upon Atty. Nolasco of the
UPLB Legal Office was invalid and ineffectual because he was admittedly not the counsel of
record of the UP. Verily, the service of the denial of the motion for reconsideration could only be
validly made upon the OLS in Diliman, and no other. It is settled that where a party has appeared
by counsel, service must be made upon such counsel. This is clear enough from Section 2,
second paragraph, of Rule 13, Rules of Court, which explicitly states that: "If any party has
appeared by counsel, service upon him shall be made upon his counsel or one of them, unless
service upon the party himself is ordered by the court. Where one counsel appears for several
parties, he shall only be entitled to one copy of any paper served upon him by the opposite side."

Secondly, even assuming that the service upon Atty. Nolasco was valid and effective, such that
the remaining period for the UP to take a timely appeal would end by May 23, 2002, it would
still not be correct to find that the judgment of the RTC became final and immutable thereafter
due to the notice of appeal being filed too late on June 3, 2002. In so declaring the judgment of
the RTC as final against the UP, the CA and the RTC applied the rule contained in the second
paragraph of Section 3, Rule 41 of the Rules of Court to the effect that the filing of a motion for
reconsideration interrupted the running of the period for filing the appeal; and that the period
resumed upon notice of the denial of the motion for reconsideration. For that reason, the CA and
the RTC might not be taken to task for strictly adhering to the rule then prevailing.

However, equity calls for the retroactive application in the UPs favor of the fresh-period rule that
the Court first announced in mid-September of 2005 through its ruling in Neypes v. Court of
Appeals, viz: "to standardize the appeal periods provided in the Rules and to afford litigants fair
opportunity to appeal their cases, the Court deems it practical to allow a fresh period of 15 days
within which to file the notice of appeal in the Regional Trial Court, counted from receipt of the
order dismissing a motion for a new trial or motion for reconsideration." The retroactive
application of the fresh-period rule, a procedural law that aims "to regiment or make the appeal
period uniform, to be counted from receipt of the order denying the motion for new trial, motion
for reconsideration (whether full or partial) or any final order or resolution," is impervious to any
serious challenge. This is because there are no vested rights in rules of procedure.

Consequently, even if the reckoning started from May 17, 2002, when Atty. Nolasco received the
denial, the UPs filing on June 3, 2002 of the notice of appeal was not tardy within the context of
the fresh-period rule. For the UP, the fresh period of 15-days counted from service of the denial
of the motion for reconsideration would end on June 1, 2002, which was a Saturday. Hence, the
UP had until the next working day, or June 3, 2002, a Monday, within which to appeal,
conformably with Section 1 of Rule 22, Rules of Court, which holds that: "If the last day of the
period, as thus computed, falls on a Saturday, a Sunday, or a legal holiday in the place where the
court sits, the time shall not run until the next working day.

GRANTED

EN BANC

[G.R. No. 107369. August 11, 1999]

JESULITO A. MANALO, petitioner, vs. PEDRO G. SISTOZA, REGINO


ARO III, NICASIO MA. CUSTODIO, GUILLERMO DOMONDON,
RAYMUNDO L. LOGAN, WILFREDO R. REOTUTAR, FELINO C.
PACHECO, JR., RUBEN J. CRUZ, GERONIMO B. VALDERRAMA,
MERARDO G. ABAYA, EVERLINO B. NARTATEZ, ENRIQUE T.
BULAN, PEDRO J. NAVARRO, DOMINADOR M. MANGUBAT,
RODOLFO M. GARCIA and HONORABLE SALVADOR M.
ENRIQUEZ II In His Capacity as Secretary of Budget and
Management, respondents.

DECISION
PURISIMA, J.:

The case at bar is not of first impression. The issue posed concerning the limits of the power
of the Commission on Appointments to confirm appointments issued by the Chief Executive has
been put to rest in a number of cases. The court finds no basis for departing from the ruling laid
down in those cases.
In this special civil action for Prohibition under Rule 65 of the Revised Rules of Court,
petitioners question the constitutionality and legality of the permanent appointments issued by
former President Corazon C. Aquino to the respondent senior officers of the Philippine National
Police who were promoted to the ranks of Chief Superintendent and Director without their
appointments submitted to the Commission on Appointments for confirmation under Section 16,
Article VII of the 1987 Constitution and Republic Act 6975 otherwise known as the Local
Government Act of 1990. Impleaded in the case is the former Secretary of Budget and
Management Salvador M. Enriquez III, who approved and effected the disbursements for the
salaries and other emoluments of subject police officers.
The antecedents facts are as follows:
On December 13, 1990, Republic Act 6975 creating the Department of Interior and Local
Government was signed into law by former President Corazon C. Aquino. Pertinent provisions
of the said Act read:

Sec. 26. Powers, Functions and Term of Office of the PNP Chief. - The command and
direction of the PNP shall be vested in the Chief of the PNP who shall have the power
to direct and control tactical as well as strategic movements, deployment, placement,
utilization of the PNP or any of its units and personal, including its equipment,
facilities and other resources. Such command and direction of the Chief of the PNP
may be delegated to subordinate officials with respect to the units under their
respective commands, in accordance with the rules and regulations prescribed by the
Commission. The Chief of the PNP shal also have the power to issue detailed
implementing policies and instructions regarding personnel, funds, properties, records,
correspondence and such other matters as may be necesary to effectively carry out the
functions, powers and duties of the Bureau. The Chief of the PNP shall be appointed
by the President from among the senior officers down to the rank of the chief
superintendent, subject to confirmation by the Commission on
Appointments: Provided, That the Chief of the PNP shall serve a term of office not to
exceed four (4) years: Provided, further, That in times of war or other national
emergency declared by Congress, the President may extend such term of
office. [1] (underlining supplied).

Sec.31. Appointment of PNP Officers and Members. - The appointment of the officers
and members of the PNP shall be effected in the following manner:

(a) Police Officer I to Senior Police Officer IV - Appointed by the PNP regional
director for regional personnel or by the Chief of the PNP for the national
headquarters personnel and attested by the Civil Service Commission;

(b) Inspector to Superintendent - Appointed by the Chief of the PNP, as recommended


by their immediate superiors, and attested by the Civil Service Commission;
(c) Senior Superintendent to Deputy Director General - Appointed by the President
upon recommendation of the Chief of the PNP, with the proper endorsement by the
Chairman of the Civil Service Commission and subject to confirmation by the
Commission on Appointments; and

(d) Director General - Appointed by the President from among the senior officers
down to the rank of chief superintendent in the service, subject to confirmation by the
Commission on Appointments; Provided, That the Chief of the PNP shall serve a tour
of duty not to exceed four (4) years; Provided, further, That, in times of war or other
national emergency declared by Congres, the President may extend such tour of duty.
(underlining supplied).

In accordance therewith, on March 10, 1992, the President of the Philippines, through then
Executive Secretary Franklin M. Drilon, promoted the fifteen (15) respondent police officers
herein, by appointing them to positions in the Philippine National Police with the rank of Chief
Superintendent to Director[2], namely:

Chief Supt. PEDRO G. SISTOZA - Director

Chief Supt. REGINO ARO III - Director

Chief Supt. NICASIO MA. CUSTODIO - Director

Chief Supt. GUILLERMO DOMONDON - Director

Chief Supt. RAYMUNDO L. LOGAN - Director

Senior Supt. WILFREDO REOTUTAR - Chief Superintendent

Senior Supt. FELINO C. PACHECO, JR. - Chief Superintendent

Senior Supt. RUBEN J. CRUZ - Chief Superintendent

Senior Supt. GERONIMO B. VALDERRAMA - Chief Superintendent

Senior Supt. MERARDO G. ABAYA - Chief Superintendent

Senior Supt. EVERLINO NARTATEZ - Chief Superintendent

Senior Supt. ENRIQUE T. BULAN - Chief Superintendent

Senior Supt. PEDRO J. NAVARRO - Chief Superintendent


Senior Supt. DOMINADOR MANGUBAT - Chief Superintendent

Senior Supt. RODOLFO M. GARCIA - Chief Superintendent

The appointments of respondent police officers were in a permanent capacity. Their letters
of appointment stated in part :

By virtue hereof, they may qualify and enter upon the performance of the duties of the
office, furnishing this office and the Civil Service Commission with copies of their
oath of office.[3]

Without their names submitted to the Commission on Appointments for confirmation, the
said police officers took their oath of office and assumed their respective positions. Thereafter,
the Department of Budget and Management, under the then Secretary Salvador M. Enriquez III,
authorized disbursements for their salaries and other emoluments.
On October 21, 1992, the petitioner brought before this Court this present original petition
for prohibition, as a taxpayer suit, to assail the legality of subject appointments and
disbursements made therefor.
Petitioner contends that:

I. Respondent officers, in assuming their offices and discharging the functions


attached thereto, despite their invalid appointments, in view of the failure to secure the
required confirmation of the Commission on Appointments as required by the
Constitution and the law, are acting without or in excess of their jurisdiction or with
grave abuse of discretion, considering that :

A. Republic Act 6975 is a valid law that duly requires confirmation of the
appointments of officers from the rank of senior superintendent and higher by the
Commission on Appointments;

B. The Philippine National Police is akin to the Armed Forces where the Constitution
specifically requires confirmation by the Commission on Appointments.

II. Respondent Secretary in allowing and/or effecting disbursements in favor of


respondent officers despite the unconstitutionality and illegality of their appointments
is acting without or in excess of his jurisdiction or with grave abuse of discretion.

The petition must fail. It is not impressed with merit.


Petitioner theorizes that Republic Act 6975 enjoys the presumption of constitutionality and
that every statute passed by Congress is presumed to have been carefully studied and considered
before its enactment. He maintains that the respect accorded to each department of the
government requires that the court should avoid, as much as possible, deciding constitutional
questions.
The Court agrees with petitioner. However, it is equally demanded from the courts, as
guardians of the Constitution, to see to it that every law passed by Congress is not repugnant to
the organic law. Courts have the inherent authority to determine whether a statute enacted by the
legislature transcends the limit delineated by the fundamental law.[4] When it does, the courts will
not hesitate to strike down such unconstitutional law.
The power to make appointments is vested in the Chief Executive by Section 16, Article VII
of the Constitution, which provides:

Section 16. The President shall nominate and, with the consent of the Commission on
Appointments, appoint the heads of the executive departments, ambassadors, other
public ministers and consuls, or officers of the armed forces from the rank of colonel
or naval captain, and other officers whose appointments are vested in him in this
Constitution. He shall also appoint all other officers of the Government whose
appointments are not otherwise provided for by law, and those whom he may be
authorized by law to appoint. The Congress may, by law, vest the appointment of
other officers lower in rank in the President alone, in the courts, or in the heads of
departments, agencies, commissions, or boards.

The President shall have the power to make appointments during the recess of the
Congress, whether voluntary or compulsory, but such appointments shall be effective
only until disapproval by the Commission on Appointments or until the next
adjournment of the Congress.

The aforecited provision of the Constitution has been the subject of several cases on the
issue of the restrictive function of the Commission on Appointments with respect to the
appointing power of the President. This court touched upon the historical antecedent of the said
provision in the case of Sarmiento III vs. Mison[5] in which it was ratiocinated upon that Section
16 of Article VII of the 1987 Constitution requiring confirmation by the Commission on
Appointments of certain appointments issued by the President contemplates a system of checks
and balances between the executive and legislative branches of government. Experience showed
that when almost all presidential appointments required the consent of the Commission on
Appointments, as was the case under the 1935 Constitution, the commission became a venue of
horse-trading and similar malpractices.[6] On the other hand, placing absolute power to make
appointments in the President with hardly any check by the legislature, as what happened under
1973 Constitution, leads to abuse of such power. Thus was perceived the need to establish a
middle ground between the 1935 and 1973 Constitutions. The framers of the 1987 Constitution
deemed it imperative to subject certain high positions in the government to the power of
confirmation of the Commission on Appointments and to allow other positions within the
exclusive appointing power of the President.
Conformably, as consistently interpreted and ruled in the leading case of Sarmiento III vs.
Mison[7], and in the subsequent cases of Bautista vs. Salonga[8], Quintos-Deles vs. Constitutional
Commission[9], and Calderon vs. Carale[10]; under Section 16, Article VII, of the Constitution,
there are four groups of officers of the government to be appointed by the President:
First, the heads of the executive departments, ambassadors, other public ministers and
consuls, officers of the armed forces from the rank of colonel or naval captain, and
other officers whose appointments are vested in him in this Constitution;

Second, all other officers of the Government whose appointments are not otherwise
provided for by law;

Third, those whom the President may be authorized by law to appoint;

Fourth, officers lower in rank whose appointments the Congress may by law vest in
the President alone.

It is well-settled that only presidential appointments belonging to the first group require the
confirmation by the Commission on Appointments. The appointments of respondent officers
who are not within the first category, need not be confirmed by the Commission on
Appointments. As held in the case of Tarrosa vs. Singson[11], Congress cannot by law expand the
power of confirmation of the Commission on Appointments and require confirmation of
appointments of other government officials not mentioned in the first sentence of Section 16 of
Article VII of the 1987 Constitution.
Consequently, unconstitutional are Sections 26 and 31 of Republic Act 6975 which
empower the Commission on Appointments to confirm the appointments of public officials
whose appointments are not required by the Constitution to be confirmed. But the
unconstitutionality of the aforesaid sections notwithstanding, the rest of Republic Act 6975
stands. It is well-settled that when provisions of law declared void are severable from the main
statute and the removal of the unconstitutional provisions would not affect the validity and
enforceability of the other provisions, the statute remains valid without its voided sections.[12]
It is petitioners submission that the Philippine National Police is akin to the Armed Forces of
the Philippines and therefore, the appointments of police officers whose rank is equal to that of
colonel or naval captain require confirmation by the Commission on Appointments.
This contention is equally untenable. The Philippine National Police is separate and distinct
from the Armed Forces of the Philippines.The Constitution, no less, sets forth the
distinction. Under Section 4 of Article XVI of the 1987 Constitution,

The Armed Forces of the Philippines shall be composed of a citizen armed force
which shall undergo military training and service, as may be provided by law. It shall
keep a regular force necessary for the security of the State.

On the other hand, Section 6 of the same Article of the Constitution ordains that:

The State shall establish and maintain one police force, which shall be national in
scope and civilian in character to be administered and controlled by a national police
commission. The authority of local executives over the police units in their
jurisdiction shall be provided by law.
To so distinguish the police force from the armed forces, Congress enacted Republic Act
6975 which states in part:

Section 2. Declaration of policy - It is hereby declared to be the policy of the State to


promote peace and order, ensure public safety and further strengthen local
government capability aimed towards the effective delivery of the basic services to the
citizenry through the establishment of a highly efficient and competent police force
that is national in scope and civilian in character. xxx

The policy force shall be organized, trained and equipped primarily for the
performance of police functions. Its national scope and civilian character shall be
paramount. No element of the police force shall be military nor shall any position
thereof be occupied by active members of the Armed Forces of the Philippines.

Thereunder, the police force is different from and independent of the armed forces and the
ranks in the military are not similar to those in the Philippine National Police. Thus, directors and
chief superintendents of the PNP, such as the herein respondent police officers, do not fall under
the first category of presidential appointees requiring the confirmation by the Commission on
Appointments.
In view of the foregoing disquisition and conclusion, the respondent former Secretary
Salvador M. Enriquez III of the Department of Budget and Management, did not act with grave
abuse of discretion in authorizing and effecting disbursements for the salaries and other
emoluments of the respondent police officers whose appointments are valid.
WHEREFORE, for lack of merit, the petition under consideration is hereby
DISMISSED. No pronouncement as to costs.
SO ORDERED.
Davide, C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing,
Pardo, Buena, Gonzaga-Reyes, and Ynares-Santiago, JJ., concur.

Republic of the Philippines


SUPREME COURT
Manila

EN BANC

G.R. No. L-45892 July 13, 1938

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,


vs.
TRANQUILINO LAGMAN, defendant-appellant.

-----------------------------
G.R. No. L-45893 July 13, 1938

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,


vs.
PRIMITIVO DE SOSA, defendant-appellant.

Severino P. Izon for appellants.


Office of the Solicitor-General Tuason for appellee.

AVANCEA, J.:

In these two cases (G.R. Nos. L-45892 and 45893), the appellants Tranquilino and Primitivo de
Sosa are charged with a violation of section 60 of Commonwealth Act No. 1, known as the National
Defense Law. It is alleged that these two appellants, being Filipinos and having reached the age of
twenty years in 1936, willfully and unlawfully refused to register in the military service between the
1st and 7th of April of said year, notwithstanding the fact that they had been required to do so. The
evidence shows that these two appellants were duly notified by the corresponding authorities to
appear before the Acceptance Board in order to register for military service in accordance with law,
and that the said appellants, in spite of these notices, had not registered up to the date of the filing of
the information.

The appellants do not deny these facts, but they allege in defense that they have not registered in
the military service because Primitivo de Sosa is fatherless and has a mother and a brother eight
years old to support, and Tranquilino Lagman also has a father to support, has no military learnings,
and does not wish to kill or be killed.

Each of these appellants was sentenced by the Court of First Instance to one month and one day of
imprisonment, with the costs.

In this instance, the validity of the National Defense Law, under which the accused were sentenced,
is impugned on the ground that it is unconstitutional. Section 2, Article II of the Constitution of the
Philippines provides as follows:

SEC. 2. The defense of the state is a prime duty of government, and in the fulfillment of this
duty all citizens may be required by law to render personal military or civil service.

The National Defense Law, in so far as it establishes compulsory military service, does not go
against this constitutional provision but is, on the contrary, in faithful compliance therewith. The duty
of the Government to defend the State cannot be performed except through an army. To leave the
organization of an army to the will of the citizens would be to make this duty of the Government
excusable should there be no sufficient men who volunteer to enlist therein. 1vvphl.nt

In the United States the courts have held in a series of decisions that the compulsory military service
adopted by reason of the civil war and the world war does not violate the Constitution, because the
power to establish it is derived from that granted to Congress to declare war and to organize and
maintain an army. This is so because the right of the Government to require compulsory military
service is a consequence of its duty to defend the State and is reciprocal with its duty to defend the
life, liberty, and property of the citizen. In the case of Jacobson vs. Massachusetts (197 U.S., 11; 25
Sup. Ct. Rep., 385), it was said that, without violating the Constitution, a person may be compelled
by force, if need be, against his will, against his pecuniary interests, and even against his religious or
political convictions, to take his place in the ranks of the army of his country, and risk the chance of
being shot down in its defense. In the case of United States vs. Olson (253 Fed., 233), it was also
said that this is not deprivation of property without due process of law, because, in its just sense,
there is no right of property to an office or employment.

The circumstance that these decisions refer to laws enacted by reason on the actual existence of
war does not make our case any different, inasmuch as, in the last analysis, what justifies
compulsory military service is the defense of the State, whether actual or whether in preparation to
make it more effective, in case of need. The circumstance that the appellants have dependent
families to support does not excuse them from their duty to present themselves before the
Acceptance Board because, if such circumstance exists, they can ask for determent in complying
with their duty and, at all events, they can obtain the proper pecuniary allowance to attend to these
family responsibilities (secs. 65 and 69 of Commonwealth Act No. 1).

The appealed judgment rendered in these two cases is affirmed, with the costs to the appellants. So
ordered.

Villa-Real, Imperial, Diaz, Laurel and Concepcion, JJ., concur.

PEOPLE vs. LAGMANG.R. Nos. L-45892 and 45893FACTS:Appellants Tranquilino Lagman and Primitivo
de Sosa are charged with a violationof section 60 of Commonwealth Act No. 1, known as the National Defense
Law. Itis alleged that these two appellants, being Filipinos and having reached the age of twenty years in 1936,
willfully and unlawfully refused to register in the military service between the 1st and 7th of April of said year,
even though they had been required to do so. The two appellants were duly notified to appear before the
Acceptance Board in order to register for military service but still did not register up to the date of the filing of
the information.Appellants argue that they did not register because de Sosa is fatherless and has a mother and a
brother eight years old to support, and Lagman also has a father to support, has no military learnings, and does
not wish to kill or be killed. The Court of First Instance sentenced them both to one month and one day of
imprisonment, with the costs.

Republic of the Philippines


SUPREME COURT
Manila

EN BANC

G.R. No. 196231 September 4, 2012

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. CARLITOD. CATAYONG, Respondents.

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

G.R. No. 196232

WENDELL BARRERAS-SULIT, Petitioner,


vs.
ATTY. PAQUITO N. OCHOA, JR., in his capacity as EXECUTIVE SECRETARY, OFFICE OF THE
PRESIDENT, ATTY. DENNIS F. ORTIZ, ATTY. CARLO D.SULAY and ATTY. FROILAN
MONTALBAN, .JR., in their capacities as CHAIRMAN and MEMBERS of the OFFICE OF
MALACAANG LEGAL AFFAIRS, Respondents.

DECISION

PERLAS-BERNABE, J.:

The Case

These two petitions have been consolidated not because they stem from the same factual milieu but
because they raise a common thread of issues relating to the President's exercise of the power to
remove from office herein petitioners who claim the protective cloak of independence of the
constitutionally-created office to which they belong - the Office of the Ombudsman.

The first case, docketed as G.R. No. 196231, is a Petition for Certiorari (with application for issuance
of temporary restraining order or status quo order) which assails on jurisdictional grounds the
Decision1 dated March 31, 2011 rendered by the Office of the President in OP Case No. 10-J-460
dismissing petitioner Emilio A. Gonzales III, Deputy Ombudsman for the Military and Other Law
Enforcement Offices (MOLEO), upon a finding of guilt on the administrative charges of Gross
Neglect of Duty and Grave Misconduct constituting a Betrayal of Public Trust. The petition primarily
seeks to declare as unconstitutional Section 8(2) of Republic Act (R.A.) No. 6770, otherwise known
as the Ombudsman Act of 1989, which gives the President the power to dismiss a Deputy
Ombudsman of the Office of the Ombudsman.

The second case, docketed as G.R. No. 196232, is a Petition for Certiorari and Prohibition (with
application for issuance of a temporary restraining order or status quo order) seeking to annul,
reverse and set aside (1) the undated Order2 requiring petitioner Wendell Barreras-Sulit to submit a
written explanation with respect to alleged acts or omissions constituting serious/grave offenses in
relation to the Plea Bargaining Agreement (PLEBARA) entered into with Major General Carlos F.
Garcia; and (2) the April 7, 2011 Notice of Preliminary Investigation,3 both issued by the Office of the
President in OP-DC-Case No. 11-B-003, the administrative case initiated against petitioner as a
Special Prosecutor of the Office of the Ombudsman. The petition likewise seeks to declare as
unconstitutional Section 8(2) of R.A. No. 6770 giving the President the power to dismiss a Special
Prosecutor of the Office of the Ombudsman.

The facts from which these two cases separately took root are neither complicated nor unfamiliar.

In the morning of August 23, 2010, news media scampered for a minute-by-minute coverage of a
hostage drama that had slowly unfolded right at the very heart of the City of Manila. While initial
news accounts were fragmented it was not difficult to piece together the story on the hostage-taker,
Police Senior Inspector Rolando Mendoza. He was a disgruntled former police officer attempting to
secure his reinstatement in the police force and to restore the benefits of a life-long, and erstwhile
bemedaled, service. The following day, broadsheets and tabloids were replete with stories not just of
the deceased hostage-taker but also of the hostage victims, eight of whom died during the bungled
police operation to rescue the hapless innocents. Their tragic deaths triggered word wars of foreign
relation proportions. One newspaper headline ran the story in detail, as follows:

MANILA, Philippines - A dismissed policeman armed with an assault rifle hijacked a bus packed with
tourists, and killed most of its passengers in a 10 hour-hostage drama shown live on national
television until last night.
Former police senior inspector Rolando Mendoza was shot dead by a sniper at past 9 p.m. Mendoza
hijacked the bus and took 21 Chinese tourists hostage, demanding his reinstatement to the police
force.

The hostage drama dragged on even after the driver of the bus managed to escape and told police
that all the remaining passengers had been killed.

Late into the night assault forces surrounded the bus and tried to gain entry, but a pair of dead
hostages hand-cuffed to the door made it difficult for them. Police said they fired at the wheels of the
bus to immobilize it.

Police used hammers to smash windows, door and wind-shield but were met with intermittent fire
from the hos-tage taker.

Police also used tear gas in an effort to confirm if the remaining hostages were all dead or alive.
When the standoff ended at nearly 9 p.m., some four hostages were rescued alive while Mendoza
was killed by a sniper.

Initial reports said some 30 policemen stormed the bus. Shots also rang out, sending bystanders
scampering for safety.

It took the policemen almost two hours to assault the bus because gunfire reportedly rang out from
inside the bus.

Mendoza hijacked the tourist bus in the morning and took the tourists hostage.

Mendoza, who claimed he was illegally dismissed from the police service, initially released nine of
the hostages during the drama that began at 10 a.m. and played out live on national television.

Live television footage showed Mendoza asking for food for those remaining in the bus, which was
delivered, and fuel to keep the air-conditioning going. The disgruntled former police officer was
reportedly armed with an M-16 rifle, a 9 mm pistol and two hand grenades.

Mendoza posted a handwritten note on the windows of the bus, saying "big deal will start after 3 p.m.
today." Another sign stuck to another window said "3 p.m. today deadlock."

Stressing his demand, Mendoza stuck a piece of paper with a handwritten message: "Big mistake to
correct a big wrong decision." A larger piece of paper on the front windshield was headed, "Release
final decision," apparently referring to the case that led to his dismissal from the police force.

Negotiations dragged on even after Mendoza's self-imposed deadline.

Senior Police Officer 2 Gregorio Mendoza said his brother was upset over his dismissal from the
police force. "His problem was he was unjustly removed from service. There was no due process, no
hearing, no com-plaint," Gregorio said.

Last night, Gregorio was arrested by his colleagues on suspicions of being an accessory to his
brother's action. Tensions rose as relatives tried to prevent lawmen from arresting Gregorio in front
of national television. This triggered the crisis that eventually forced Mendoza to carry out his threat
and kill the remaining hostages.
Negotiators led by Superintendent Orlando Yebra and Chief Inspector Romeo Salvador tried to talk
Mendoza into surrendering and releasing the 21 hostages, mostly children and three Filipinos,
including the driver, the tourist guide and a photographer. Yebra reportedly lent a cellphone to allow
communications with Mendoza in-side the bus, which was parked in front ofthe Quirino Grandstand.

Children could be seen peeking from the drawn curtains of the bus while police negotiators hovered
near the scene.

Manila Police District (MPD) director Chief Superinten-dent Rodolfo Magtibay ordered the
deployment of crack police teams and snipers near the scene. A crisis man-agement committee had
been activated with Manila Vice Mayor Isko Moreno coordinating the actions with the MPD.

Earlier last night, Ombudsman Merceditas Gutierrez had a meeting with Moreno to discuss
Mendoza's case that led to his dismissal from the service. Ombudsman spokesman Jose de Jesus
said Gutierrez gave a "sealed letter" to Moreno to be delivered to Mendoza. De Jesus did not
elaborate on the contents of the letter but said Moreno was tasked to personally deliver the letter to
Mendoza.

MPD spokesman Chief Inspector Edwin Margarejo said Mendoza was apparently distraught by the
slow process of the Ombudsman in deciding his motion for reconside-ration. He said the PNP-
Internal Affairs Service and the Manila Regional Trial Court had already dismissed crim-inal cases
against him.

The hostage drama began when Mendoza flagged down the Hong Thai Travel Tourist bus (TVU-
799), pretend-ing to hitch a ride. Margarejo said the bus had just left Fort Santiago in Intramuros
when Mendoza asked the driver to let him get on and ride to Quirino Grandstand. Upon reaching the
Quirino Grandstand, Mendoza an-nounced to the passengers that they would be taken hostage.
"Having worn his (police) uniform, of course there is no doubt that he already planned the hostage
taking," Margarejo said. - Sandy Araneta, Nestor Etolle, Delon Porcalla, Amanda Fisher, Cecille
Suerte Felipe, Christi-na Mendez, AP Grandstand Carnage, The Philippine Star, Updated August 24,
2010 12:00 AM, Val Rodri-guez.4

In a completely separate incident much earlier in time, more particularly in December of 2003, 28-
year-old Juan Paolo Garcia and 23-year-old Ian Carl Garcia were caught in the United States
smuggling $100,000 from Manila by concealing the cash in their luggage and making false
statements to US Customs Officers. The Garcia brothers pleaded guilty to bulk cash smuggling and
agreed to forfeit the amount in favor of the US Government in exchange for the dismissal of the rest
of the charges against them and for being sentenced to time served. Inevitably, however, an
investigation into the source of the smuggled currency conducted by US Federal Agents and the
Philippine Government unraveled a scandal of military corruption and amassed wealth -- the boys'
father, Retired Major General Carlos F. Garcia, former Chief Procurement Officer of the Armed
Forces, had accumulated more than 300 Million during his active military service. Plunder and
Anti-Money Laundering cases were eventually filed against Major General Garcia, his wife and their
two sons before the Sandiganbayan.

G.R. No. 196231

Sometime in 2008, a formal charge5 for Grave Misconduct (robbery, grave threats, robbery extortion
and physical injuries) was filed before the Philippine National Police-National Capital Region (PNP-
NCR) against Manila Police District Senior Inspector (P/S Insp.) Rolando Mendoza, and four others,
namely, Police Inspector Nelson Lagasca, Senior Police Inspector I Nestor David, Police Officer III
Wilson Gavino, and Police Officer II Roderick Lopena. A similar charge was filed by the private
complainant, Christian M. Kalaw, before the Office of the City Prosecutor, Manila, docketed as I.S.
No. 08E-09512.

On July 24, 2008, while said cases were still pending, the Office of the Regional Director of the
National Police Commission (NPC) turned over, upon the request of petitioner Emilio A. Gonzales III,
all relevant documents and evidence in relation to said case to the Office of the Deputy Ombudsman
for appropriate administrative adjudication.6 Subsequently, Case No. OMB-P-A-08-0670-H for Grave
Misconduct was lodged against P/S Insp. Rolando Mendoza and his fellow police officers, who filed
their respective verified position papers as directed.

Meanwhile, on August 26, 2008, I.S. No. 08E-09512 was dismissed7 upon a finding that the material
allegations made by the complainant had not been substantiated "by any evidence at all to warrant
the indictment of respondents of the offenses charged." Similarly, the Internal Affairs Service of the
PNP issued a Resolution8 dated October 17, 2008 recommending the dismissal without prejudice of
the administrative case against the same police officers, for failure of the complainant to appear in
three (3) consecutive hearings despite due notice.

However, on February 16, 2009, upon the recommendation of petitioner Emilio Gonzales III, a
Decision9 in Case No. OMB-P-A-08-0670-H finding P/S Insp. Rolando Mendoza and his fellow police
officers guilty of Grave Misconduct was approved by the Ombudsman. The dispositive portion of
said Decision reads:

WHEREFORE, it is respectfully recommended that respondents P/S Insp. ROLANDO DEL


ROSARIO MENDOZA and PO3 WILSON MATIC GAVINO of PRO-ARMM, Camp Brig. Gen.
Salipada K. Pendatun, Parang, Shariff Kabunsuan; P/INSP. NELSON URBANO LAGASCA, SPO1
NESTOR REYES DAVID and PO2 RODERICK SALVA LOPEA of Manila Police District,
Headquarters, United Nations Avenue, Manila, be meted the penalty of DISMISSAL from the
Service, pursuant to Section 52 (A), Rule IV, Uniform Rules on Administrative Cases in the Civil
Service, with the accessory penalties of forfeiture of retirement benefits and perpetual
disqualification from reemployment in the government service pursuant to Section 58, Rule IV of the
same Uniform Rules of Administrative Cases in the Civil Service, for having committed GRAVE
MISCONDUCT.

On November 5, 2009, they filed a Motion for Reconsideration10 of the foregoing Decision, followed
by a Supplement to the Motion for Reconsideration11 on November 19, 2009. On December 14, 2009,
the pleadings mentioned and the records of the case were assigned for review and recommendation
to Graft Investigation and Prosecutor Officer Dennis L. Garcia, who released a draft Order12 on April
5, 2010 for appropriate action by his immediate superior, Director Eulogio S. Cecilio, who, in turn,
signed and forwarded said Order to petitioner Gonzalez's office on April 27, 2010. Not more than ten
(10) days after, more particularly on May 6, 2010, petitioner endorsed the Order, together with the
case records, for final approval by Ombudsman Merceditas N. Gutierrez, in whose office it remained
pending for final review and action when P/S Insp. Mendoza hijacked a bus-load of foreign tourists
on that fateful day of August 23, 2010 in a desperate attempt to have himself reinstated in the police
service.

In the aftermath of the hostage-taking incident, which ended in the tragic murder of eight HongKong
Chinese nationals, the injury of seven others and the death of P/S Insp. Rolando Mendoza, a public
outcry against the blundering of government officials prompted the creation of the Incident
Investigation and Review Committee (IIRC),13 chaired by Justice Secretary Leila de Lima and vice-
chaired by Interior and Local Government Secretary Jesus Robredo. It was tasked to determine
accountability for the incident through the conduct of public hearings and executive sessions.
However, petitioner, as well as the Ombudsman herself, refused to participate in the IIRC
proceedings on the assertion that the Office of the Ombudsman is an independent constitutional
body.

Sifting through testimonial and documentary evidence, the IIRC eventually identified petitioner
Gonzales to be among those in whom culpability must lie. In its Report,14 the IIRC made the following
findings:

Deputy Ombudsman Gonzales committed serious and inexcusable negligence and gross violation of
their own rules of procedure by allowing Mendoza's motion for reconsideration to languish for more
than nine (9) months without any justification, in violation of the Ombudsman prescribed rules to
resolve motions for reconsideration in administrative disciplinary cases within five (5) days from
submission. The inaction is gross, considering there is no opposition thereto. The prolonged inaction
precipitated the desperate resort to hostage-taking.

More so, Mendoza's demand for immediate resolution of his motion for reconsideration is not without
legal and compelling bases considering the following:

(a) PSI Mendoza and four policemen were investigated by the Ombudsman involving
a case for alleged robbery (extortion), grave threats and physical injuries amounting
to grave misconduct allegedly committed against a certain Christian Kalaw. The
same case, however, was previously dismissed by the Manila City Prosecutors
Office for lack of probable cause and by the PNP-NCR Internal Affairs Service for
failure of the complainant (Christian Kalaw) to submit evidence and prosecute the
case. On the other hand, the case which was filed much ahead by Mendoza et al.
against Christian Kalaw involving the same incident, was given due course by the
City Prosecutors Office.

(b) The Ombudsman exercised jurisdiction over the case based on a letter issued
motu proprio for Deputy Ombudsman Emilio A. Gonzalez III, directing the PNP-NCR
- without citing any reason - to endorse the case against Mendoza and the arresting
policemen to his office for administrative adjudication, thereby showing undue
interest on the case. He also caused the docketing of the case and named Atty.
Clarence V. Guinto of the PNP-CIDG-NCR, who indorsed the case records, as the
nominal complainant, in lieu of Christian Kalaw. During the proceedings, Christian
Kalaw did not also affirm his complaint-affidavit with the Ombudsman or submit any
position paper as required.

(c) Subsequently, Mendoza, after serving preventive suspension, was adjudged


liable for grave misconduct by Deputy Ombudsman Gonzales (duly approved on May
21, 2009) based on the sole and uncorroborated complaint-affidavit of Christian
Kalaw, which was not previously sustained by the City Prosecutor's Office and the
PNP Internal Affairs Service. From the said Resolution, Mendoza interposed a timely
motion for reconsideration (dated and filed November 5, 2009) as well as a
supplement thereto. No opposition or comment was filed thereto.

(d) Despite the pending and unresolved motion for reconsideration, the judgment of
dismissal was enforced, thereby abruptly ending Mendoza's 30 years of service in
the PNP with forfeiture of all his benefits. As a result, Mendoza sought urgent relief
by sending several hand-written letter-requests to the Ombudsman for immediate
resolution of his motion for reconsideration. But his requests fell on deaf ears.

xxxx
By allowing Mendoza's motion for reconsideration to languish for nine long (9) months without any
justification, Ombudsman Gutierrez and Deputy Ombudsman Gonzales committed complete and
wanton violation of the Ombudsman prescribed rule to resolve motions for reconsideration in
administrative disciplinary cases within five (5) days from submission (Sec. 8, Ombudsman Rules of
Procedure). The inaction is gross, there being no opposition to the motion for reconsideration.

Besides, the Ombudsman, without first resolving the motion for reconsideration, arbitrarily enforced
the judgment of dismissal and ignored the intervening requests for immediate resolution, thereby
rendering the inaction even more inexcusable and unjust as to amount to gross negligence and
grave misconduct.

SECOND, Ombudsman Gutierrez and Deputy Ombudsman Gonzales committed serious disregard
of due process, manifest injustice and oppression in failing to provisionally suspend the further
implementation of the judgment of dismissal against Mendoza pending disposition of his unresolved
motion for reconsideration.

By enforcing the judgment of dismissal without resolving the motion for reconsideration for over nine
months, the two Ombudsman officials acted with arbitrariness and without regard to due process
and the constitutional right of an accused to the speedy disposition of his case. As long as his
motion for reconsideration remained pending and unresolved, Mendoza was also effectively
deprived of the right to avail of the ordinary course of appeal or review to challenge the judgment of
dismissal before the higher courts and seek a temporary restraining order to prevent the further
execution thereof.

As such, if the Ombudsman cannot resolve with dispatch the motion for reconsideration, it should
have provisionally suspended the further enforcement of the judgment of dismissal without prejudice
to its re-implementation if the reconsideration is eventually denied. Otherwise, the Ombudsman will
benefit from its own inaction. Besides, the litigant is entitled to a stay of the execution pending
resolution of his motion for reconsideration. Until the motion for reconsideration is denied, the
adjudication process before the Ombudsman cannot be considered as completely finished and,
hence, the judgment is not yet ripe for execution.

xxxx

When the two Ombudsman officials received Mendoza's demand for the release of the final order
resolving his motion for reconsideration, they should have performed their duty by resolving the
reconsideration that same day since it was already pending for nine months and the prescribed
period for its resolution is only five days. Or if they cannot resolve it that same day, then they should
have acted decisively by issuing an order provisionally suspending the further enforcement of the
judgment of dismissal subject to revocation once the reconsideration is denied and without prejudice
to the arrest and prosecution of Mendoza for the hostage-taking. Had they done so, the crisis may
have ended peacefully, without necessarily compromising the integrity of the institution. After all, as
relayed to the negotiators, Mendoza did express willingness to take full responsibility for the
hostage-taking if his demand for release of the final decision or reinstatement was met.

But instead of acting decisively, the two Ombudsman officials merely offered to review a pending
motion for review of the case, thereby prolonging their inaction and aggravating the situation. As
expected, Mendoza - who previously berated Deputy Gonzales for allegedly demanding Php150,000
in exchange for favorably resolving the motion for reconsideration - rejected and branded as trash
("basura") the Ombudsman [sic] letter promising review, triggering the collapse of the negotiations.
To prevent the situation from getting out of hand, the negotiators sought the alternative option of
securing before the PNP-NCRPO an order for Mendoza's provisional reinstatement pending
resolution of the motion for reconsideration. Unfortunately, it was already too late. But had the
Ombudsman officials performed their duty under the law and acted decisively, the entire crisis may
have ended differently.

The IIRC recommended that its findings with respect to petitioner Gonzales be referred to the Office
of the President (OP) for further determination of possible administrative offenses and for the
initiation of the proper administrative proceedings.

On October 15, 2010, the OP instituted a Formal Charge15 against petitioner Gonzales for Gross
Neglect of Duty and/or Inefficiency in the Performance of Official Duty under Rule XIV, Section 22 of
the Omnibus Rules Implementing Book V of E.O. No. 292 and other pertinent Civil

Service Laws, rules and regulations, and for Misconduct in Office under Section 3 of the Anti-Graft
and Corrupt Practices Act.16 Petitioner filed his Answer17 thereto in due time.

Shortly after the filing by the OP of the administrative case against petitioner, a complaint dated
October 29, 2010 was filed by Acting Assistant Ombudsman Joselito P. Fangon before the Internal
Affairs Board of the Office of the Ombudsman charging petitioner with "directly or indirectly
requesting or receiving any gift, present, share, percentage, or benefit, for himself or for any other
person, in connection with any contract or transaction between the Government and any other party,
wherein the public officer in his official capacity has to intervene under the law" under Section 3(b) of
the Anti-Graft and Corrupt Practices Act, and also, with solicitation or acceptance of gifts under
Section 7(d) of the Code of Conduct and Ethical Standards.18 In a Joint Resolution19 dated February
17, 2011, which was approved by Ombudsman Ma. Merceditas N. Gutierrez, the complaint was
dismissed, as follows:

WHEREFORE, premises considered, finding no probable cause to indict respondent Emilio A.


Gonzales III for violations of Section 3(b) of R.A. No. 3019 and Section 7(d) of R.A. No. 6713, the
complaint is hereby be [sic] DISMISSED.

Further, finding no sufficient evidence to hold respondent administratively liable for Misconduct, the
same is likewise DISMISSED.

Meanwhile, the OP notified20 petitioner that a Preliminary Clarificatory Conference relative to the
administrative charge against him was to be conducted at the Office of the Deputy Executive
Secretary for Legal Affairs (ODESLA) on February 8, 2011. Petitioner Gonzales alleged,21 however,
that on February 4, 2011, he heard the news that the OP had announced his suspension for one
year due to his delay in the disposition of P/S Insp. Mendoza's motion for reconsideration. Hence,
believing that the OP had already prejudged his case and that any proceeding before it would simply
be a charade, petitioner no longer attended the scheduled clarificatory conference. Instead, he filed
an Objection to Proceedings22 on February 7, 2011. Despite petitioner's absence, however, the OP
pushed through with the proceedings and, on March 31, 2011, rendered the assailed Decision,23 the
dispositive portion of which reads:

WHEREFORE, in view of the foregoing, this Office finds Deputy Ombudsman Emilio A. Gonzales III
guilty of Gross Neglect of Duty and Grave Misconduct constituting betrayal of public trust, and
hereby meted out the penalty of DISMISSAL from service.

SO ORDERED.

Hence, the petition.


G.R. No. 196232

In April of 2005, the Acting Deputy Special Prosecutor of the Office of the Ombudsman charged
Major General Carlos F. Garcia, his wife Clarita D. Garcia, their sons Ian Carl Garcia, Juan Paulo
Garcia and Timothy Mark Garcia and several unknown persons with Plunder (Criminal Case No.
28107) and Money Laundering (Criminal Case No. SB09CRM0194) before the Sandiganbayan.

On January 7, 2010, the Sandiganbayan denied Major General Garcia's urgent petition for bail
holding that strong prosecution evidence militated against the grant of bail. On March 16, 2010,
however, the government, represented by petitioner, Special Prosecutor Wendell Barreras-Sulit
("Barreras-Sulit") and her prosecutorial staff sought the Sandiganbayan's approval of a Plea
Bargaining Agreement (hereinafter referred to as "PLEBARA") entered into with the accused. On
May 4, 2010, the Sandiganbayan issued a Resolution finding the change of plea warranted and the
PLEBARA compliant with jurisprudential guidelines.

Outraged by the backroom deal that could allow Major General Garcia to get off the hook with
nothing but a slap on the hand notwithstanding the prosecution's apparently strong evidence of his
culpability for serious public offenses, the House of Representatives' Committee on Justice
conducted public hearings on the PLEBARA. At the conclusion of these public hearings, the
Committee on Justice passed and adopted Committee Resolution No. 3,24recommending to the
President the dismissal of petitioner Barreras-Sulit from the service and the filing of appropriate
charges against her Deputies and Assistants before the appropriate government office for having
committed acts and/or omissions tantamount to culpable violations of the Constitution and betrayal
of public trust, which are violations under the Anti-Graft and Corrupt Practices Act and grounds for
removal from office under the Ombudsman Act.

The Office of the President initiated OP-DC-Case No. 11-B-003 against petitioner Barreras-Sulit. In
her written explanation, petitioner raised the defenses of prematurity and the lack of jurisdiction of
the OP with respect to the administrative disciplinary proceeding against her. The OP, however, still
proceeded with the case, setting it for preliminary investigation on April 15, 2011.

Hence, the petition.

The Issues

In G.R. No. 196231, petitioner Gonzales raises the following grounds, to wit:

(A)

RESPONDENT OFFICE OF THE PRESIDENT, ACTING THROUGH THE OTHER INDIVIDUAL


RESPONDENTS, HAS NO CONSTITUTIONAL OR VALID STATUTORY AUTHORITY TO
SUBJECT PETITIONER TO AN ADMINISTRATIVE INVESTIGATION AND TO THEREAFTER
ORDER HIS REMOVAL AS DEPUTY OMBUDSMAN.

(B)

RESPONDENT OFFICE OF THE PRESIDENT, ACTING THROUGH THE OTHER INDIVIDUAL


RESPONDENTS, GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION WHEN IT CONDUCTED ITS INVESTIGATION AND RENDERED ITS DECISION IN
VIOLATION OF PETITIONER'S RIGHT TO DUE PROCESS.
(C)

RESPONDENT OFFICE OF THE PRESIDENT, ACTING THROUGH THE INDIVIDUAL


RESPONDENTS, GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION IN FINDING THAT PETITIONER COMMITTED DELAY IN THE DISPOSITION OF
MENDOZA'S MOTION FOR RECONSIDERATION.

(D)

RESPONDENT OFFICE OF THE PRESIDENT, ACTING THROUGH THE INDIVIDUAL


RESPONDENTS, GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION IN FINDING THAT PETITIONER TOOK UNDUE INTEREST IN MENDOZA'S
CASE.

(E)

RESPONDENT OFFICE OF THE PRESIDENT, ACTING THROUGH THE INDIVIDUAL


RESPONDENTS, GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION IN FAULTING PETITIONER FOR NOT RELEASING THE RESOLUTION ON
MENDOZA'S MOTION FOR RECONSIDERATION OR FOR NOT SUSPENDING MENDOZA'S
DISMISSAL FROM SERVICE DURING THE HOSTAGE CRISIS.

(F)

RESPONDENT OFFICE OF THE PRESIDENT, ACTING THROUGH THE INDIVIDUAL


RESPONDENTS, GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION IN FINDING THAT THERE WAS SUBSTANTIAL EVIDENCE TO SHOW THAT
PETITIONER DEMANDED A BRIBE FROM MENDOZA.25

On the other hand, in G.R. No. 196232, petitioner Barreras-Sulit poses for the Court the question -

AS OF THIS POINT IN TIME, WOULD TAKING AND CONTINUING TO TAKE ADMINISTRATIVE


DISCIPLINARY PROCEEDING AGAINST PETITIONER BE LAWFUL AND JUSTIFIABLE? 26

Re-stated, the primordial question in these two petitions is whether the Office of the President has
jurisdiction to exercise administrative disciplinary power over a Deputy Ombudsman and a Special
Prosecutor who belong to the constitutionally-created Office of the Ombudsman.

The Court's Ruling

Short of claiming themselves immune from the ordinary means of removal, petitioners asseverate
that the President has no disciplinary jurisdiction over them considering that the Office of the
Ombudsman to which they belong is clothed with constitutional independence and that they, as
Deputy Ombudsman and Special Prosecutor therein, necessarily bear the constitutional attributes of
said office.

The Court is not convinced.

The Ombudsman's administrative


disciplinary power over a Deputy
Ombudsman and Special Prose-cutor is not exclusive.
It is true that the authority of the Office of the Ombudsman to conduct administrative investigations
proceeds from its constitutional mandate to be an effective protector of the people against inept and
corrupt government officers and employees,27 and is subsumed under the broad powers "explicitly
conferred" upon it by the 1987 Constitution and R.A. No. 6770.28

The ombudsman traces its origins to the primitive legal order of Germanic tribes. The Swedish term,
which literally means "agent" or "representative," communicates the concept that has been carried
on into the creation of the modern-day ombudsman, that is, someone who acts as a neutral
representative of ordinary citizens against government abuses.29 This idea of a people's protector
was first institutionalized in the Philippines under the 1973 Constitution with the creation of the
Tanodbayan, which wielded the twin powers of investigation and prosecution. Section 6, Article XIII
of the 1973 Constitution provided thus:

Sec. 6. The Batasang Pambansa shall create an office of the Ombudsman, to be known as
Tanodbayan, which shall receive and investigate complaints relative to public office, including those
in government-owned or controlled corporations, make appropriate recommendations, and in case of
failure of justice as defined by law, file and prosecute the corresponding criminal, civil, or
administrative case before the proper court or body.

The framers of the 1987 Constitution later envisioned a more effective ombudsman vested with
authority to "act in a quick, inexpensive and effective manner on complaints against administrative
officials", and to function purely with the "prestige and persuasive powers of his office" in correcting
improprieties, inefficiencies and corruption in government freed from the hampering effects of
prosecutorial duties.30 Accordingly, Section 13, Article XI of the 1987 Constitution enumerates the
following powers, functions, and duties of the Office of the Ombudsman, viz:

(1) Investigate on its own, or on complaint by any person, any act or omission of any public official,
employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or
inefficient.

(2) Direct, upon complaint or at its own instance, any public official or employee of the
Government, or any subdivision, agency or instrumentality thereof, as well as of any government-
owned or controlled corporation with original charter, to perform and expedite any act or duty
required by law, or to stop, prevent, and correct any abuse or impropriety in the performance of
duties.

(3) Direct the officer concerned to take appropriate action against a public official or employee at
fault, and recommend his removal, suspension, demotion, fine, censure, or prosecution, and ensure
compliance therewith.

(4) Direct the officer concerned, in any appropriate case, and subject to such limitations as may be
provided by law, to furnish it with copies of documents relating to contracts or transactions entered
into by his office involving the disbursement or use of public funds or properties, and report any
irregularity to the Commission on Audit for appropriate action.

(5) Request any government agency for assistance and information necessary in the discharge of
its responsibilities, and to examine, if necessary, pertinent records and documents.

(6) Publicize matters covered by its investigation when circumstances so warrant and with due
prudence.
(7) Determine the causes of inefficiency, red tape, mismanagement, fraud, and corruption in the
Government and make recommendations for their elimination and the observance of high standards
of ethics and efficiency.

(8) Promulgate its rules of procedure and exercise such other powers or perform such functions or
duties as may be provided by law.31

Congress thereafter passed, on November 17, 1989, Republic Act No. 6770, the Ombudsman Act of
1989, to shore up the Ombudsman's institutional strength by granting it "full administrative
disciplinary power over public officials and employees,"32 as follows:

Sec. 21. Officials 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
supplied)

In the exercise of such full administrative disciplinary authority, the Office of the Ombudsman was
explicitly conferred the statutory power to conduct administrative investigations under Section 19 of
the same law, thus:

Sec. 19. Administrative complaints. - The Ombudsman shall act on all complaints relating, but not
limited, to acts or omissions which:

1. Are contrary to law or regulation;

2. Are unreasonable, unfair, oppressive or discriminatory;

3. Are inconsistent with the general course of an agency's functions, though in accordance with law;

4. Proceed from a mistake of law or an arbitrary ascertainment of facts;

5. Are in the exercise of discretionary powers but for an improper purpose; or

6. Are otherwise irregular, immoral or devoid of justification.

While the Ombudsman's authority to discipline administratively is extensive and covers all
government officials, whether appointive or elective, with the exception only of those officials
removable by impeachment, the members of congress and the judiciary, such authority is by no
means exclusive. Petitioners cannot insist that they should be solely and directly subject to the
disciplinary authority of the Ombudsman. For, while Section 21 declares the Ombudsman's
disciplinary authority over all government officials, Section 8(2), on the other hand, grants the
President express power of removal over a Deputy Ombudsman and a Special Prosecutor. Thus:

Section 8. Removal; Filling of Vacancy.-

xxxx

(2) A Deputy or the Special Prosecutor, may be removed from office by the President for any of the
grounds provided for the removal of the Ombudsman, and after due process.
It is a basic canon of statutory construction that in interpreting a statute, care should be taken that
every part thereof be given effect, on the theory that it was enacted as an integrated measure and
not as a hodge-podge of conflicting provisions. A construction that would render a provision
inoperative should be avoided; instead, apparently inconsistent provisions should be reconciled
whenever possible as parts of a coordinated and harmonious whole.33Otherwise stated, the law must
not be read in truncated parts. Every part thereof must be considered together with the other parts,
and kept subservient to the general intent of the whole enactment.34

A harmonious construction of these two apparently conflicting provisions in R.A. No. 6770 leads to
the inevitable conclusion that Congress had intended the Ombudsman and the President to exercise
concurrent disciplinary jurisdiction over petitioners as Deputy Ombudsman and Special

Prosecutor, respectively. This sharing of authority goes into the wisdom of the legislature, which
prerogative falls beyond the pale of judicial inquiry. The Congressional deliberations on this matter
are quite insightful, viz:

x x x Senator Angara explained that the phrase was added to highlight the fact that the Deputy
Tanodbayan may only be removed for cause and after due process. He added that the President
alone has the power to remove the Deputy Tanodbayan.

Reacting thereto, Senator Guingona observed that this might impair the independence of the
Tanodbayan and suggested that the procedural removal of the Deputy Tanodbayan...; and that he
can be removed not by the President but by the Ombudsman.

However, the Chair expressed apprehension that the Ombudsman and the Deputy Ombudsman
may try to protect one another. The Chair suggested the substitution of the phrase "after due
process" with the words after due notice and hearing with the President as the ultimate authority.

Senator Guingona contended, however, that the Constitution provides for an independent Office of
the Tanodbayan, and to allow the Executive to have disciplinary powers over the Tanodbayan
Deputies would be an encroachment on the independence of the Tanodbayan.

Replying thereto, Senator Angara stated that originally, he was not averse to the proposal, however,
considering the Chair's observation that vesting such authority upon the Tanodbayan itself could
result in mutual protection, it is necessary that an outside official should be vested with such
authority to effect a check and balance.35

Indubitably, the manifest intent of Congress in enacting both provisions - Section 8(2) and Section
21 - in the same Organic Act was to provide for an external authority, through the person of the
President, that would exercise the power of administrative discipline over the Deputy Ombudsman
and Special Prosecutor without in the least diminishing the constitutional and plenary authority of the
Ombudsman over all government officials and employees. Such legislative design is simply a
measure of "check and balance" intended to address the lawmakers' real and valid concern that the
Ombudsman and his Deputy may try to protect one another from administrative liabilities.

This would not be the first instance that the Office of the President has locked horns with the
Ombudsman on the matter of disciplinary jurisdiction. An earlier conflict had been settled in favor of
shared authority in Hagad v. Gozo Dadole.36 In said case, the Mayor and Vice-Mayor of Mandaue
City, and a member of the Sangguniang Panlungsod, were charged before the Office of the Deputy
Ombudsman for the Visayas with violations of R.A. No. 3019, R.A. No. 6713, and the Revised Penal
Code. The pivotal issue raised therein was whether the Ombudsman had been divested of his
authority to conduct administrative investigations over said local elective officials by virtue of the
subsequent enactment of the Local Government Code of 1991 (R.A. No. 7160), the pertinent
provision of which states:

Sec. 61. Form and Filing of Administrative Complaints.- A verified complaint against any erring local
elective official shall be prepared as follows:

(a) A complaint against any elective official of a province, a highly urbanized city, an independent
component city or component city shall be filed before the Office of the President.

The Court resolved said issue in the negative, upholding the ratiocination of the Solicitor General
that R.A. No. 7160 should be viewed as having conferred on the Office of the President, but not on
an exclusive basis, disciplinary authority over local elective officials. Despite the fact that R.A. No.
7160 was the more recent expression of legislative will, no repeal of pertinent provisions in the
Ombudsman Act was inferred therefrom. Thus said the Court:

Indeed, there is nothing in the Local Government Code to indicate that it has repealed, whether
expressly or impliedly, the pertinent provisions of the Ombudsman Act. The two statutes on the
specific matter in question are not so inconsistent, let alone irreconcilable, as to compel us to only
uphold one and strike down the other. Well settled is the rule that repeals of laws by implication are
not favored, and that courts must generally assume their congruent application. The two laws must
be absolutely incompatible, and a clear finding thereof must surface, before the inference of implied
repeal may be drawn. The rule is expressed in the maxim, interpretare et concordare legibus est
optimus interpretendi, i.e., every statute must be so interpreted and brought into accord with other
laws as to form a uniform system of jurisprudence. The fundament is that the legislature should be
presumed to have known the existing laws on the subject and not to have enacted conflicting
statutes. Hence, all doubts must be resolved against any implied repeal, and all efforts should be
exerted in order to harmonize and give effect to all laws on the subject.37

While Hagad v. Gozo Dadole38 upheld the plenary power of the Office of the Ombudsman to
discipline elective officials over the same disciplinary authority of the President under R.A. No. 7160,
the more recent case of the Office of the Ombudsman v. Delijero39 tempered the exercise by the
Ombudsman of such plenary power invoking Section 23(2)40 of R.A. No. 6770, which gives the
Ombudsman the option to "refer certain complaints to the proper disciplinary authority for the
institution of appropriate administrative proceedings against erring public officers or employees." The
Court underscored therein the clear legislative intent of imposing "a standard and a separate set of
procedural requirements in connection with administrative proceedings involving public school
teachers"41 with the enactment of R.A. No. 4670, otherwise known as "The Magna Carta for Public
School Teachers." It thus declared that, while the Ombudsman's administrative disciplinary authority
over a public school teacher is concurrent with the proper investigating committee of the Department
of Education, it would have been more prudent under the circumstances for the Ombudsman to have
referred to the DECS the complaint against the public school teacher.

Unquestionably, the Ombudsman is possessed of jurisdiction to discipline his own people and mete
out administrative sanctions upon them, including the extreme penalty of dismissal from the service.
However, it is equally without question that the President has concurrent authority with respect to
removal from office of the Deputy Ombudsman and Special Prosecutor, albeit under specified
conditions. Considering the principles attending concurrence of jurisdiction where the Office of the
President was the first to initiate a case against petitioner Gonzales, prudence should have
prompted the Ombudsman to desist from proceeding separately against petitioner through its
Internal Affairs Board, and to defer instead to the President's assumption of authority, especially
when the administrative charge involved "demanding and soliciting a sum of money" which
constitutes either graft and corruption or bribery, both of which are grounds reserved for the
President's exercise of his authority to remove a Deputy Ombudsman.

In any case, assuming that the Ombudsman's Internal Affairs Board properly conducted a
subsequent and parallel administrative action against petitioner, its earlier dismissal of the charge of
graft and corruption against petitioner could not have the effect of preventing the Office of the
President from proceeding against petitioner upon the same ground of graft and corruption. After all,
the doctrine of res judicata applies only to judicial or quasi-judicial proceedings, not to the exercise of
administrative powers.42 In Montemayor v. Bundalian,43 the Court sustained the President's dismissal
from service of a Regional Director of the Department of Public Works and Highways (DPWH) who
was found liable for unexplained wealth upon investigation by the now defunct Philippine
Commission Against Graft and Corruption (PCAGC). The Court categorically ruled therein that the
prior dismissal by the Ombudsman of similar charges against said official did not operate as res
judicata in the PCAGC case.

By granting express statutory


power to the President to remove
a Deputy Ombudsman and a
Special Prosecutor, Congress
merely filled an obvious gap in
the law.

Section 9, Article XI of the 1987 Constitution confers upon the President the power to appoint the
Ombudsman and his Deputies, viz:

Section 9. The Ombudsman and his Deputies shall be appointed by the President from a list of at
least six nominees prepared by the Judicial and Bar Council, and from a list of three nominees for
every vacancy thereafter. Such appointments shall require no confirmation. All vacancies shall be
filled within three months after they occur.

While the removal of the Ombudsman himself is also expressly provided for in the Constitution,
which is by impeachment under Section 244 of the same Article, there is, however, no constitutional
provision similarly dealing with the removal from office of a Deputy Ombudsman, or a Special
Prosecutor, for that matter. By enacting Section 8(2) of R.A. 6770, Congress simply filled a gap in
the law without running afoul of any provision in the Constitution or existing statutes. In fact, the
Constitution itself, under Section 2, authorizes Congress to provide for the removal of all other public
officers, including the Deputy Ombudsman and Special Prosecutor, who are not subject to
impeachment.

That the Deputies of the Ombudsman were intentionally excluded from the enumeration of
impeachable officials is clear from the following deliberations45 of the Constitutional Commission,
thus:

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.46

xxx

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 onimpeachment. 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.47 (Emphasis supplied)

The Power of the President to


Remove a Deputy Ombudsman
and a Special Prosecutor is
Implied from his Power to
Appoint.

Under the doctrine of implication, the power to appoint carries with it the power to remove.48 As a
general rule, therefore, all officers appointed by the President are also removable by him.49 The
exception to this is when the law expressly provides otherwise - that is, when the power to remove is
expressly vested in an office or authority other than the appointing power. In some cases, the
Constitution expressly separates the power to remove from the President's power to appoint. Under
Section 9, Article VIII of the 1987 Constitution, the Members of the Supreme Court and judges of
lower courts shall be appointed by the President. However, Members of the Supreme Court may be
removed after impeachment proceedings initiated by Congress (Section 2, Article XI), while judges
of lower courts may be removed only by the Supreme Court by virtue of its administrative
supervision over all its personnel (Sections 6 and 11, Article VIII). The Chairpersons and
Commissioners of the Civil Service Commission Section 1(2), Article IX(B), the Commission on
Elections Section 1(2), Article IX(C), and the Commission on Audit Section 1(2), Article IX(D) shall
likewise be appointed by the President, but they may be removed only by impeachment (Section 2,
Article XI). As priorly stated, the Ombudsman himself shall be appointed by the President (Section 9,
Article XI) but may also be removed only by impeachment (Section 2, Article XI).
In giving the President the power to remove a Deputy Ombudsman and Special Prosecutor,
Congress simply laid down in express terms an authority that is already implied from the President's
constitutional authority to appoint the aforesaid officials in the Office of the Ombudsman.

The Office of the Ombudsman is charged with monumental tasks that have been generally
categorized into investigatory power, prosecutorial power, public assistance, authority to inquire and
obtain information and the function to adopt, institute and implement preventive measures.50 In order
to ensure the effectiveness of his constitutional role, the Ombudsman was provided with an over-all
deputy as well as a deputy each for Luzon, Visayas and Mindanao. However, well into the
deliberations of the Constitutional Commission, a provision for the appointment of a separate deputy
for the military establishment was necessitated by Commissioner Ople's lament against the rise
within the armed forces of "fraternal associations outside the chain of command" which have
become the common soldiers' "informal grievance machinery" against injustice, corruption and
neglect in the uniformed service,51 thus:

In our own Philippine Armed Forces, there has arisen in recent years a type of fraternal association
outside the chain of command proposing reformist objectives. They constitute, in fact, an informal
grievance machinery against injustices to the rank and file soldiery and perceive graft in higher rank
and neglect of the needs of troops in combat zones. The Reform the Armed Forces Movement of
RAM has kept precincts for pushing logistics to the field, the implied accusation being that most of
the resources are used up in Manila instead of sent to soldiers in the field. The Guardians, the El
Diablo and other organizations dominated by enlisted men function, more or less, as grievance
collectors and as mutual aid societies.

This proposed amendment merely seeks to extend the office of the Ombudsman to the military
establishment, just as it champions the common people against bureaucratic indifference. The
Ombudsman can designate a deputy to help the ordinary foot soldier get through with his grievance
to higher authorities. This deputy will, of course work in close cooperation with the Minister of
National Defense because of the necessity to maintain the integrity of the chain of command.
Ordinary soldiers, when they know they can turn to a military Ombudsman for their complaints, may
not have to fall back on their own informal devices to obtain redress for their grievances. The
Ombudsman will help raise troop morale in accordance with a major professed goal of the President
and the military authorities themselves. x x x

The add-on now forms part of Section 5, Article XI which reads as follows:

Section 5. There is hereby created the independent Office of the Ombudsman, composed of the
Ombudsman to be known as Tanodbayan, one over-all Deputy and at least one Deputy each for
Luzon, Visayas and Mindanao. A separate deputy for the military establishment shall likewise be
appointed.(Emphasis supplied)

The integrity and effectiveness of the Deputy Ombudsman for the MOLEO as a military watchdog
looking into abuses and irregularities that affect the general morale and professionalism in the
military is certainly of primordial importance in relation to the President's own role asCommander-in-
Chief of the Armed Forces. It would not be incongruous for Congress, therefore, to grant the
President concurrent disciplinary authority over the Deputy Ombudsman for the military and other
law enforcement offices.

Granting the President the Power


to Remove a Deputy Ombudsman
does not Diminish the
Independence of the Office of the
Ombudsman.

The claim that Section 8(2) of R.A. No. 6770 granting the President the power to remove a Deputy
Ombudsman from office totally frustrates, if not resultantly negates the independence of the Office of
the Ombudsman is tenuous. The independence which the Office of the Ombudsman is vested with
was intended to free it from political considerations in pursuing its constitutional mandate to be a
protector of the people. What the Constitution secures for the Office of the Ombudsman is,
essentially, political independence. This means nothing more than that "the terms of office, the
salary, the appointments and discipline of all persons under the office" are "reasonably insulated
from the whims of politicians."52 And so it was that Section 5, Article XI of the 1987 Constitution had
declared the creation of the independent Office of the Ombudsman, composed of the Ombudsman
and his Deputies, who are described as "protectors of the people" and constitutionally mandated to
act promptly on complaints filed in any form or manner against public officials or employees of the
Government Section 12, Article XI. Pertinent provisions under Article XI prescribes a term of office of
seven years without reappointment Section 11, prohibits a decrease in salaries during the term of
office Section 10, provides strict qualifications for the office Section 8, grants fiscal autonomy
Section 14 and ensures the exercise of constitutional functions Section 12 and 13. The cloak of
independence is meant to build up the Office of the Ombudsman's institutional strength to effectively
function as official critic, mobilizer of government, constitutional watchdog53 and protector of the
people. It certainly cannot be made to extend to wrongdoings and permit the unbridled acts of its
officials to escape administrative discipline.

Being aware of the constitutional imperative of shielding the Office of the Ombudsman from political
influences and the discretionary acts of the executive, Congress laid down two restrictions on the
President's exercise of such power of removal over a Deputy Ombudsman, namely: (1) that the
removal of the Deputy Ombudsman must be for any of the grounds provided for the removal of the
Ombudsman and (2) that there must be observance of due process. Reiterating the grounds for
impeachment laid down in Section 2, Article XI of the 1987 Constitution, paragraph 1 of Section 8 of
R.A. No. 6770 states that the Deputy Ombudsman may be removed from office for the same
grounds that the Ombudsman may be removed through impeachment, namely, "culpable violation of
the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust."
Thus, it cannot be rightly said that giving the President the power to remove a Deputy Ombudsman,
or a Special Prosecutor for that matter, would diminish or compromise the constitutional
independence of the Office of the Ombudsman. It is, precisely, a measure of protection of the
independence of the Ombudsman's Deputies and Special Prosecutor in the discharge of their duties
that their removal can only be had on grounds provided by law.

In Espinosa v. Office of the Ombudsman,54 the Court elucidated on the nature of the Ombudsman's
independence in this wise -

The prosecution of offenses committed by public officers is vested in the Office of the Ombudsman.
To insulate the Office from outside pressure and improper influence, the Constitution as well as RA
6770 has endowed it with a wide latitude of investigatory and prosecutory powers virtually free from
legislative, executive or judicial intervention. This Court consistently refrains from interfering with the
exercise of its powers, and respects the initiative and independence inherent in the Ombudsman
who, 'beholden to no one, acts as the champion of the people and the preserver of the integrity of
public service.

Petitioner Gonzales may not be


removed from office where the
questioned acts, falling short of
constitutional standards, do not
constitute betrayal of public trust.

Having now settled the question concerning the validity of the President's power to remove the
Deputy Ombudsman and Special Prosecutor, we now go to the substance of the administrative
findings in OP Case No. 10-J-460 which led to the dismissal of herein petitioner, Deputy
Ombudsman Emilio A. Gonzales, III.

At the outset, the Court finds no cause for petitioner Gonzales to complain simply because the OP
proceeded with the administrative case against him despite his non-attendance thereat. Petitioner
was admittedly able to file an Answer in which he had interposed his defenses to the formal charge
against him. Due process is satisfied when a person is notified of the charge against him and given
an opportunity to explain or defend himself. In administrative proceedings, the filing of charges and
giving reasonable opportunity for the person so charged to answer the accusations against him
constitute the minimum requirements of due process.55 Due process is simply having the opportunity
to explain one's side, or an opportunity to seek a reconsideration of the action or ruling complained
of.56

The essence of due process is that a party is afforded reasonable opportunity to be heard and to
submit any evidence he may have in support of his defense.57 Mere opportunity to be heard is
sufficient. As long as petitioner was given the opportunity to explain his side and present evidence,
the requirements of due process are satisfactorily complied with because what the law abhors is an
absolute lack of opportunity to be heard.58 Besides, petitioner only has himself to blame for limiting his
defense through the filing of an Answer. He had squandered a subsequent opportunity to elucidate
upon his pleaded defenses by adamantly refusing to attend the scheduled Clarificatory Conference
despite notice. The OP recounted as follows -

It bears noting that respondent Deputy Ombudsman Gonzalez was given two separate opportunities
to explain his side and answer the Formal Charge against him.

In the first instance, respondent was given the opportunity to submit his answer together with his
documentary evidence, which opportunity respondent actually availed of. In the second instance,
this Office called a Clarificatory Conference on 8 February 2011 pursuant to respondent's express
election of a formal investigation. Despite due notice, however, respondent Deputy Ombudsman
refused to appear for said conference, interposing an objection based on the unfounded notion that
this Office has prejudged the instant case. Respondent having been given actual and reasonable
opportunity to explain or defend himself in due course, the requirement of due process has been
satisfied.59

In administrative proceedings, the quantum of proof necessary for a finding of guilt is substantial
evidence,60 which is more than a mere scintilla and means such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.61 The fact, therefore, that petitioner later
refused to participate in the hearings before the OP is not a hindrance to a finding of his culpability
based on substantial evidence, which only requires that a decision must "have something upon
which it is based."62

Factual findings of administrative bodies are controlling when supported by substantial


evidence.63 The OP's pronouncement of administrative accountability against petitioner and the
imposition upon him of the corresponding penalty of removal from office was based on the finding of
gross neglect of duty and grave misconduct in office amounting to a betrayal of public trust, which is
a constitutional ground for the removal by impeachment of the Ombudsman (Section 2, Article XI,
1987 Constitution), and a statutory ground for the President to remove from office a Deputy
Ombudsman and a Special Prosecutor Section 8(2) of the Ombudsman Act.

The OP held that petitioner's want of care and wrongful conduct consisted of his unexplained action
in directing the PNP-NCR to elevate P/S Insp. Mendoza's case records to his office; his failure to
verify the basis for requesting the Ombudsman to take over the case; his pronouncement of
administrative liability and imposition of the extreme penalty of dismissal on P/S Insp. Mendoza
based upon an unverified complaint-affidavit; his inordinate haste in implementing P/S Insp.
Mendoza's dismissal notwithstanding the latter's non-receipt of his copy of the Decision and the
subsequent filing of a motion for reconsideration; and his apparent unconcern that the pendency of
the motion for reconsideration for more than five months had deprived P/S Insp. Mendoza of
available remedies against the immediate implementation of the Decision dismissing him from the
service.

Thus, taking into consideration the factual determinations of the IIRC, the allegations and evidence
of petitioner in his Answer as well as other documentary evidence, the OP concluded that: (1)
petitioner failed to supervise his subordinates to act with dispatch on the draft resolution of P/S Insp.
Mendoza's motion for reconsideration and thereby caused undue prejudice to P/S Insp. Mendoza by
effectively depriving the latter of the right to challenge the dismissal before the courts and prevent its
immediate execution, and (2) petitioner showed undue interest by having P/S Insp. Mendoza's case
endorsed to the Office of the Ombudsman and resolving the same against P/S Insp. Mendoza on the
basis of the unverified complaint-affidavit of the alleged victim Christian Kalaw.

The invariable rule is that administrative decisions in matters within the executive jurisdiction can
only be set aside on proof of gross abuse of discretion, fraud, or error of law.64 In the instant case,
while the evidence may show some amount of wrongdoing on the part of petitioner, the Court
seriously doubts the correctness of the OP's conclusion that the imputed acts amount to gross
neglect of duty and grave misconduct constitutive of betrayal of public trust. To say that petitioner's
offenses, as they factually appear, weigh heavily enough to constitute betrayal of public trust would
be to ignore the significance of the legislature's intent in prescribing the removal of the Deputy
Ombudsman or the Special Prosecutor for causes that, theretofore, had been reserved only for the
most serious violations that justify the removal by impeachment of the highest officials of the land.

Would every negligent act or misconduct in the performance of a Deputy Ombudsman's duties
constitute betrayal of public trust warranting immediate removal from office? The question calls for a
deeper, circumspective look at the nature of the grounds for the removal of a Deputy Ombudsman
and a Special Prosecutor vis-a-vis common administrative offenses.

Betrayal of public trust is a new ground for impeachment under the 1987 Constitution added to the
existing grounds of culpable violation of the Constitution, treason, bribery, graft and corruption and
other high crimes. While it was deemed broad enough to cover any violation of the oath of
office,65 the impreciseness of its definition also created apprehension that "such an overarching
standard may be too broad and may be subject to abuse and arbitrary exercise by the
legislature."66 Indeed, the catch-all phrase betrayal of public trust that referred to "all acts not
punishable by statutes as penal offenses but, nonetheless, render the officer unfit to continue in
office"67 could be easily utilized for every conceivable misconduct or negligence in office. However,
deliberating on some workable standard by which the ground could be reasonably interpreted, the
Constitutional Commission recognized that human error and good faith precluded an adverse
conclusion.

MR. VILLACORTA: x x x One last matter with respect to the use of the words "betrayal of public
trust" as embodying a ground for impeachment that has been raised by the Honorable Regalado. I
am not a lawyer so I can anticipate the difficulties that a layman may encounter in understanding this
provision and also the possible abuses that the legislature can commit in interpreting this phrase. It
is to be noted that this ground was also suggested in the 1971 Constitutional Convention. A review
of the Journals of that Convention will show that it was not included; it was construed as
encompassing acts which are just short of being criminal but constitute gross faithlessness against
public trust, tyrannical abuse of power, inexcusable negligence of duty, favoritism, and gross
exercise of discretionary powers. I understand from the earlier discussions that these constitute
violations of the oath of office, and also I heard the Honorable Davide say that even the criminal acts
that were enumerated in the earlier 1973 provision on this matter constitute betrayal of public trust
as well. In order to avoid confusion, would it not be clearer to stick to the wording of Section 2 which
reads: "may be removed from office on impeachment for and conviction of, culpable violation of the
Constitution, treason, bribery, and other high crimes, graft and corruption or VIOLATION OF HIS
OATH OF OFFICE", because if betrayal of public trust encompasses the earlier acts that were
enumerated, then it would behoove us to be equally clear about this last provision or phrase.

MR. NOLLEDO: x x x I think we will miss a golden opportunity if we fail to adopt the words "betrayal
of public trust" in the 1986 Constitution. But I would like him to know that we are amenable to any
possible amendment. Besides, I think plain error of judgment, where circumstances may indicate
that there is good faith, to my mind, will not constitute betrayal of public trust if that statement will
allay the fears of difficulty in interpreting the term."68 (Emphasis supplied)

The Constitutional Commission eventually found it reasonably acceptable for the phrase betrayal of
public trust to refer to "acts which are just short of being criminal but constitute gross faithlessness
against public trust, tyrannical abuse of power, inexcusable negligence of duty, favoritism, and gross
exercise of discretionary powers."69 In other words, acts that should constitute betrayal of public trust
as to warrant removal from office may be less than criminal but must be attended by bad faith and of
such gravity and seriousness as the other grounds for impeachment.

A Deputy Ombudsman and a Special Prosecutor are not impeachable officers. However, by
providing for their removal from office on the same grounds as removal by impeachment, the
legislature could not have intended to redefine constitutional standards of culpable violation of the
Constitution, treason, bribery, graft and corruption, other high crimes, as well as betrayal of public
trust, and apply them less stringently. Hence, where betrayal of public trust, for purposes of
impeachment, was not intended to cover all kinds of official wrongdoing and plain errors of judgment,
this should remain true even for purposes of removing a Deputy Ombudsman and Special
Prosecutor from office. Hence, the fact that the grounds for impeachment have been made statutory
grounds for the removal by the President of a Deputy Ombudsman and Special Prosecutor cannot
diminish the seriousness of their nature nor the acuity of their scope. Betrayal of public trust could
not suddenly "overreach" to cover acts that are not vicious or malevolent on the same level as the
other grounds for impeachment.

The tragic hostage-taking incident was the result of a confluence of several unfortunate events
including system failure of government response. It cannot be solely attributed then to what
petitioner Gonzales may have negligently failed to do for the quick, fair and complete resolution of
the case, or to his error of judgment in the disposition thereof. Neither should petitioner's official acts
in the resolution of P/S Insp. Mendoza's case be judged based upon the resulting deaths at the
Quirino Grandstand. The failure to immediately act upon a party's requests for an early resolution of
his case is not, by itself, gross neglect of duty amounting to betrayal of public trust. Records show
that petitioner took considerably less time to act upon the draft resolution after the same was
submitted for his appropriate action compared to the length of time that said draft remained pending
and unacted upon in the Office of Ombudsman Merceditas N. Gutierrez. He reviewed and denied
P/S Insp. Mendoza's motion for reconsideration within nine (9) calendar days reckoned from the time
the draft resolution was submitted to him on April 27, 2010 until he forwarded his recommendation to
the Office of Ombudsman Gutierrez on May 6, 2010 for the latter's final action. Clearly, the release
of any final order on the case was no longer in his hands.

Even if there was inordinate delay in the resolution of P/S Insp. Mendoza's motion and an
unexplained failure on petitioner's part to supervise his subordinates in its prompt disposition, the
same cannot be considered a vicious and malevolent act warranting his removal for betrayal of
public trust. More so because the neglect imputed upon petitioner appears to be an isolated case.

Similarly, petitioner's act of directing the PNP-IAS to endorse P/S Insp. Mendoza's case to the
Ombudsman without citing any reason therefor cannot, by itself, be considered a manifestation of his
undue interest in the case that would amount to wrongful or unlawful conduct. After all, taking
cognizance of cases upon the request of concerned agencies or private parties is part and parcel of
the constitutional mandate of the Office of the Ombudsman to be the "champion of the people." The
factual circumstances that the case was turned over to the Office of the Ombudsman upon
petitioner's request; that administrative liability was pronounced against P/S Insp. Mendoza even
without the private complainant verifying the truth of his statements; that the decision was
immediately implemented; or that the motion for reconsideration thereof remained pending for more
than nine months cannot be simply taken as evidence of petitioner's undue interest in the case
considering the lack of evidence of any personal grudge, social ties or business affiliation with any of
the parties to the case that could have impelled him to act as he did. There was likewise no evidence
at all of any bribery that took place, or of any corrupt intention or questionable motivation.

Accordingly, the OP's pronouncement of administrative accountability against petitioner and the
imposition upon him of the corresponding penalty of dismissal must be reversed and set aside, as
the findings of neglect of duty or misconduct in office do not amount to a betrayal of public trust.
Hence, the President, while he may be vested with authority, cannot order the removal of petitioner
as Deputy Ombudsman, there being no intentional wrongdoing of the grave and serious kind
amounting to a betrayal of public trust.

This is not to say, however, that petitioner is relieved of all liability for his acts showing less than
diligent performance of official duties. Although the administrative acts imputed to petitioner fall short
of the constitutional standard of betrayal of public trust, considering the OP's factual findings of
negligence and misconduct against petitioner, the Court deems it appropriate to refer the case to the
Office of the Ombudsman for further investigation of the charges in OP Case No. 10-J-460 and the
imposition of the corresponding administrative sanctions, if any.

Inasmuch as there is as yet no existing ground justifying his removal from office, petitioner is entitled
to reinstatement to his former position as Deputy Ombudsman and to the payment of backwages
and benefits corresponding to the period of his suspension.

The Office of the President is vested


with statutory authority to proceed
administratively against petitioner
Barreras-Sulit to determine the
existence of any of the grounds for
her removal from office as provided
for under the Constitution and the
Ombudsman Act.

Petitioner Barreras-Sulit, on the other hand, has been resisting the President's authority to remove
her from office upon the averment that without the Sandiganbayan's final approval and judgment on
the basis of the PLEBARA, it would be premature to charge her with acts and/or omissions
"tantamount to culpable violations of the Constitution and betrayal of public trust," which are grounds
for removal from office under Section 8, paragraph (2) of the Ombudsman Act of 1989; and which
also constitute a violation of Section 3, paragraph (e) of Republic Act No. 3019 (Anti-Graft and
Corrupt Practices Act) - causing undue injury to the Government or giving any private party any
unwarranted benefits, advantage or preference through manifest partiality, evident bad faith or gross
inexcusable negligence. With reference to the doctrine of prejudicial procedural antecedent,
petitioner Barreras-Sulit asserts that the propriety of taking and continuing to take administrative
disciplinary proceeding against her must depend on the final disposition by the Sandiganbayan of
the PLEBARA, explaining that if the Sandiganbayan would uphold the PLEBARA, there would no
longer be any cause of complaint against her; if not, then the situation becomes ripe for the
determination of her failings.

The argument will not hold water. The incidents that have taken place subsequent to the submission
in court of the PLEBARA shows that the PLEBARA has been practically approved, and that the only
thing which remains to be done by the Sandiganbayan is to promulgate a judgment imposing the
proper sentence on the accused Major General Garcia based on his new pleas to lesser offenses.
On May 4, 2010, the Sandiganbayan issued a resolution declaring that the change of plea under the
PLEBARA was warranted and that it complied with jurisprudential guidelines. The Sandiganbayan,
thereafter, directed the accused Major General Garcia to immediately convey in favor of the State all
the properties, both real and personal, enumerated therein. On August 11, 2010, the Sandiganbayan
issued a resolution, which, in order to put into effect the reversion of Major General Garcia's ill-gotten
properties, ordered the corresponding government agencies to cause the transfer of ownership of
said properties to the Republic of the Philippines. In the meantime, the Office of the Special
Prosecutor (OSP) informed the Sandiganbayan that an Order70 had been issued by the Regional Trial
Court of Manila, Branch 21 on November 5, 2010 allowing the transfer of the accused's frozen
accounts to the Republic of the Philippines pursuant to the terms of the PLEBARA as approved by
the Sandiganbayan. Immediately after the OSP informed the Sandiganbayan that its May 4, 2010
Resolution had been substantially complied with, Major General Garcia manifested71 to the
Sandiganbayan on November 19, 2010 his readiness for sentencing and for the withdrawal of the
criminal information against his wife and two sons. Major General Garcia's Motion to Dismiss,72 dated
December 16, 2010 and filed with the Sandiganbayan, reads:

1.0 The Co-Accused were impleaded under the theory of conspiracy with the Principal Accused
MGen. Carlos F. Garcia (AFP Ret.), (Principal Accused) with the allegation that the act of one is the
act of the others. Therefore, with the approval by the Honorable Court of the Plea Bargaining
Agreement executed by the Principal Accused, the charges against the Co-Accused should likewise
be dismissed since the charges against them are anchored on the same charges against the
Principal Accused.

On December 16, 2010, the Sandiganbayan allowed accused Major General Garcia to plead guilty
to the lesser offenses of direct bribery and violation of Section 4(b), R.A. No. 9160, as amended.
Upon Major General Garcia's motion, and with the express conformity of the OSP, the
Sandiganbayan allowed him to post bail in both cases, each at a measly amount of 30,000.00.

The approval or disapproval of the PLEBARA by the Sandiganbayan is of no consequence to an


administrative finding of liability against petitioner Barreras-Sulit. While the court's determination of
the propriety of a plea bargain is on the basis of the existing prosecution evidence on record, the
disciplinary authority's determination of the prosecutor's administrative liability is based on whether
the plea bargain is consistent with the conscientious consideration of the government's best interest
and the diligent and efficient performance by the prosecution of its public duty to prosecute crimes
against the State. Consequently, the disciplining authority's finding of ineptitude, neglect or
willfulness on the part of the prosecution, more particularly petitioner Special Prosecutor Barreras-
Sulit, in failing to pursue or build a strong case for the government or, in this case, entering into an
agreement which the government finds "grossly disadvantageous," could result in administrative
liability, notwithstanding court approval of the plea bargaining agreement entered into.

Plea bargaining is a process in criminal cases whereby the accused and the prosecution work out a
mutually satisfactory disposition of the case subject to court approval.73 The essence of a plea
bargaining agreement is the allowance of an accused to plead guilty to a lesser offense than that
charged against him. Section 2, Rule 116 of the Revised Rules of Criminal Procedure provides the
procedure therefor, to wit:

SEC. 2. Plea of guilty to a lesser offense. -- At arraignment, the accused, with the consent of the
offended party and the prosecutor, may be allowed by the trial court to plead guilty to a lesser
offense which is necessarily included in the offense charged. After arraignment but before trial, the
accused may still be allowed to plead guilty to said lesser offense after withdrawing his plea of not
guilty. No amendment of the complaint or information is necessary. (Sec. 4, Cir. 38-98)

Plea bargaining is allowable when the prosecution does not have sufficient evidence to establish the
guilt of the accused of the crime charged.74 However, if the basis for the allowance of a plea bargain
in this case is the evidence on record, then it is significant to state that in its earlier
Resolution75 promulgated on January 7, 2010, the Sandiganbayan had evaluated the testimonies of
twenty (20) prosecution witnesses and declared that "the conglomeration of evidence presented by
the prosecution is viewed by the Court to be of strong character that militates against the grant of
bail."

Notwithstanding this earlier ruling by the Sandiganbayan, the OSP, unexplainably, chose to plea
bargain with the accused Major General Garcia as if its evidence were suddenly insufficient to
secure a conviction. At this juncture, it is not amiss to emphasize that the "standard of strong
evidence of guilt which is sufficient to deny bail to an accused is markedly higher than the standard
of judicial probable cause which is sufficient to initiate a criminal case."76Hence, in light of the
apparently strong case against accused Major General Garcia, the disciplining authority would be
hard-pressed not to look into the whys and wherefores of the prosecution's turnabout in the case.

The Court need not touch further upon the substantial matters that are the subject of the pending
administrative proceeding against petitioner Barreras-Sulit and are, thus, better left to the complete
and effective resolution of the administrative case before the Office of the President.

The challenge to the constitutionality of Section 8(2) of the Ombudsman Act has, nonetheless, failed
to obtain the necessary votes to invalidate the law, thus, keeping said provision part of the law of the
land. To recall, these cases involve two distinct issues: (a) the constitutionality of Section 8(2) of the
Ombudsman Act; and (b) the validity of the administrative action of removal taken against petitioner
Gonzales. While the Court voted unanimously to reverse the decision of the OP removing petitioner
Gonzales from office, it was equally divided in its opinion on the constitutionality of the assailed
statutory provision in its two deliberations held on April 17, 2012 and September 4, 2012. There
being no majority vote to invalidate the law, the Court, therefore, dismisses the challenge to the
constitutionality of Section 8(2) of the Ombudsman Act in accordance with Section 2(d), Rule 12 of
the Internal Rules of the Court.

Indeed, Section 4(2), Article VIII of the 1987 Constitution requires the vote of the majority of the
Members of the Court actually taking part in the deliberation to sustain any challenge to the
constitutionality or validity of a statute or any of its provisions.

WHEREFORE, in G.R. No. 196231, the decision of the Office of the President in OP Case No. 10-J-
460 isREVERSED 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. 11-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.

The challenge to the constitutionality of Section 8(2) of the Ombudsman Act is hereby DENIED.

SO ORDERED.

ESTELA M. PERLAS-BERNABE
Associate Justice

WE CONCUR:

MARIA LOURDES P. A. SERENO


Chief Justice

ANTONIO T. CARPIO PRESBITERO J. VELASCO, JR.


Associate Justice Associate Justice

TERESITA J. LEONARDO-DE CASTRO ARTURO D. BRION


Associate Justice Associate Justice

DIOSDADO M. PERALTA LUCAS P. BERSAMIN


Associate Justice Associate Justice

MARIANO C. DEL CASTILLO ROBERTO A. ABAD


Associate Justice Associate Justice

MARTIN S. VILLARAMA, JR. JOSE PORTUGAL PEREZ


Associate Justice Associate Justice

JOSE CATRAL MENDOZA BIENVENIDO L. REYES


Associate Justice Associate Justice

CERTIFICATION

I certify that the conclusions in the above Decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Court.

Ma. LOURDES P. A. SERENO


Chief Justice

EN BANC
[G.R. No. 127325. March 19, 1997]

MIRIAM DEFENSOR SANTIAGO, ALEXANDER PADILLA and MARIA


ISABEL ONGPIN, petitioners, vs.COMMISSION ON ELECTIONS,
JESUS DELFIN, ALBERTO PEDROSA & CARMEN PEDROSA, in
their capacities as founding members of the Peoples Initiative
for Reforms, Modernization and Action
(PIRMA), respondents, SENATOR RAUL S. ROCO,
DEMOKRASYA-IPAGTANGGOL ANG KONSTITUSYON (DIK),
MOVEMENT OF ATTORNEYS FOR BROTHERHOOD INTEGRITY
AND NATIONALISM, INC. (MABINI), INTEGRATED BAR OF THE
PHILIPPINES (IBP) and LABAN NG DEMOKRATIKONG PILIPINO
(LABAN), petitioners-intervenors.

DECISION
DAVIDE, JR., J.:

The heart of this controversy brought to us by way of a petition for prohibition under
Rule 65 of the Rules of Court is the right of the people to directly propose amendments
to the Constitution through the system of initiative under Section 2 of Article XVII of the
1987 Constitution. Undoubtedly, this demands special attention, as this system of
initiative was unknown to the people of this country, except perhaps to a few scholars,
before the drafting of the 1987 Constitution. The 1986 Constitutional Commission itself,
through the original proponent[1] and the main sponsor[2] of the proposed Article on
Amendments or Revision of the Constitution, characterized this system as
innovative.[3] Indeed it is, for both under the 1935 and 1973 Constitutions, only two
methods of proposing amendments to, or revision of, the Constitution were
recognized, viz., (1) by Congress upon a vote of three-fourths of all its members and (2)
by a constitutional convention.[4] For this and the other reasons hereafter discussed, we
resolved to give due course to this petition.
On 6 December 1996, private respondent Atty. Jesus S. Delfin filed with public
respondent Commission on Elections (hereafter, COMELEC) a Petition to Amend the
Constitution, to Lift Term Limits of Elective Officials, by Peoples Initiative (hereafter,
Delfin Petition)[5] wherein Delfin asked the COMELEC for an order
1. Fixing the time and dates for signature gathering all over the country;
2. Causing the necessary publications of said Order and the attached Petition for
Initiative on the 1987 Constitution, in newspapers of general and local circulation;
3. Instructing Municipal Election Registrars in all Regions of the Philippines, to assist
Petitioners and volunteers, in establishingsigning stations at the time and on the
dates designated for the purpose.
Delfin alleged in his petition that he is a founding member of the Movement for
Peoples Initiative,[6] a group of citizens desirous to avail of the system intended to
institutionalize people power; that he and the members of the Movement and other
volunteers intend to exercise the power to directly propose amendments to the
Constitution granted under Section 2, Article XVII of the Constitution; that the exercise
of that power shall be conducted in proceedings under the control and supervision of
the COMELEC; that, as required in COMELEC Resolution No. 2300, signature stations
shall be established all over the country, with the assistance of municipal election
registrars, who shall verify the signatures affixed by individual signatories; that before
the Movement and other volunteers can gather signatures, it is necessary that the time
and dates to be designated for the purpose be first fixed in an order to be issued by the
COMELEC; and that to adequately inform the people of the electoral process involved,
it is likewise necessary that the said order, as well as the Petition on which the
signatures shall be affixed, be published in newspapers of general and local circulation,
under the control and supervision of the COMELEC.
The Delfin Petition further alleged that the provisions sought to be amended are
Sections 4 and 7 of Article VI,[7] Section 4 of Article VII,[8] and Section 8 of Article X[9] of
the Constitution. Attached to the petition is a copy of a Petition for Initiative on the 1987
Constitution[10] embodying the proposed amendments which consist in the deletion from
the aforecited sections of the provisions concerning term limits, and with the following
proposition:

DO YOU APPROVE OF LIFTING THE TERM LIMITS OF ALL ELECTIVE


GOVERNMENT OFFICIALS, AMENDING FOR THE PURPOSE SECTIONS 4
AND 7 OF ARTICLE VI, SECTION 4 OF ARTICLE VII, AND SECTION 8 OF
ARTICLE X OF THE 1987 PHILIPPINE CONSTITUTION?

According to Delfin, the said Petition for Initiative will first be submitted to the
people, and after it is signed by at least twelve per cent of the total number of registered
voters in the country it will be formally filed with the COMELEC.
Upon the filing of the Delfin Petition, which was forthwith given the number UND 96-
037 (INITIATIVE), the COMELEC, through its Chairman, issued an Order[11] (a) directing
Delfin to cause the publication of the petition, together with the attached Petition for
Initiative on the 1987 Constitution (including the proposal, proposed constitutional
amendment, and the signature form), and the notice of hearing in three (3) daily
newspapers of general circulation at his own expense not later than 9 December 1996;
and (b) setting the case for hearing on 12 December 1996 at 10:00 a.m.
At the hearing of the Delfin Petition on 12 December 1996, the following appeared:
Delfin and Atty. Pete Q. Quadra; representatives of the Peoples Initiative for Reforms,
Modernization and Action (PIRMA); intervenor-oppositor Senator Raul S. Roco,
together with his two other lawyers; and representatives of, or counsel for, the
Integrated Bar of the Philippines (IBP), Demokrasya-Ipagtanggol ang Konstitusyon
(DIK), Public Interest Law Center, and Laban ng Demokratikong Pilipino
(LABAN).[12] Senator Roco, on that same day, filed a Motion to Dismiss the Delfin
Petition on the ground that it is not the initiatory petition properly cognizable by the
COMELEC.
After hearing their arguments, the COMELEC directed Delfin and the oppositors to
file their memoranda and/or oppositions/memoranda within five days.[13]
On 18 December 1996, the petitioners herein -- Senator Miriam Defensor Santiago,
Alexander Padilla, and Maria Isabel Ongpin -- filed this special civil action for prohibition
raising the following arguments:

(1) The constitutional provision on peoples initiative to amend the Constitution can
only be implemented by law to be passed by Congress.No such law has been passed;
in fact, Senate Bill No. 1290 entitled An Act Prescribing and Regulating
Constitutional Amendments by Peoples Initiative, which petitioner Senator Santiago
filed on 24 November 1995, is still pending before the Senate Committee on
Constitutional Amendments.

(2) It is true that R.A. No. 6735 provides for three systems of initiative, namely,
initiative on the Constitution, on statutes, and on local legislation. However, it failed
to provide any subtitle on initiative on the Constitution, unlike in the other modes of
initiative, which are specifically provided for in Subtitle II and Subtitle III. This
deliberate omission indicates that the matter of peoples initiative to amend the
Constitution was left to some future law. Former Senator Arturo Tolentino stressed
this deficiency in the law in his privilege speech delivered before the Senate in 1994:
There is not a single word in that law which can be considered as implementing [the
provision on constitutional initiative]. Such implementing provisions have been
obviously left to a separate law.

(3) Republic Act No. 6735 provides for the effectivity of the law after publication in
print media. This indicates that the Act covers only laws and not constitutional
amendments because the latter take effect only upon ratification and not after
publication.

(4) COMELEC Resolution No. 2300, adopted on 16 January 1991 to govern the
conduct of initiative on the Constitution and initiative and referendum on national and
local laws, is ultra vires insofar as initiative on amendments to the Constitution is
concerned, since the COMELEC has no power to provide rules and regulations for the
exercise of the right of initiative to amend the Constitution. Only Congress is
authorized by the Constitution to pass the implementing law.

(5)The peoples initiative is limited to amendments to the Constitution, not


to revision thereof. Extending or lifting of term limits constitutes a revision and is,
therefore, outside the power of the peoples initiative.
(6) Finally, Congress has not yet appropriated funds for peoples initiative; neither the
COMELEC nor any other government department, agency, or office has realigned
funds for the purpose.

To justify their recourse to us via the special civil action for prohibition, the
petitioners allege that in the event the COMELEC grants the Delfin Petition, the peoples
initiative spearheaded by PIRMA would entail expenses to the national treasury for
general re-registration of voters amounting to at least P180 million, not to mention the
millions of additional pesos in expenses which would be incurred in the conduct of the
initiative itself. Hence, the transcendental importance to the public and the nation of the
issues raised demands that this petition for prohibition be settled promptly and
definitely, brushing aside technicalities of procedure and calling for the admission of a
taxpayers and legislators suit.[14] Besides, there is no other plain, speedy, and adequate
remedy in the ordinary course of law.
On 19 December 1996, this Court (a) required the respondents to comment on the
petition within a non-extendible period of ten days from notice; and (b) issued a
temporary restraining order, effective immediately and continuing until further orders,
enjoining public respondent COMELEC from proceeding with the Delfin Petition, and
private respondents Alberto and Carmen Pedrosa from conducting a signature drive for
peoples initiative to amend the Constitution.
On 2 January 1997, private respondents, through Atty Quadra, filed their
Comment[15] on the petition. They argue therein that:

1. IT IS NOT TRUE THAT IT WOULD ENTAIL EXPENSES TO THE NATIONAL


TREASURY FOR GENERAL REGISTRATION OF VOTERS AMOUNTING TO
AT LEAST PESOS: ONE HUNDRED EIGHTY MILLION (P180,000,000.00) IF
THE COMELEC GRANTS THE PETITION FILED BY RESPONDENT DELFIN
BEFORE THE COMELEC.

2. NOT A SINGLE CENTAVO WOULD BE SPENT BY THE NATIONAL


GOVERNMENT IF THE COMELEC GRANTS THE PETITION OF
RESPONDENT DELFIN. ALL EXPENSES IN THE SIGNATURE GATHERING
ARE ALL FOR THE ACCOUNT OF RESPONDENT DELFIN AND HIS
VOLUNTEERS PER THEIR PROGRAM OF ACTIVITIES AND EXPENDITURES
SUBMITTED TO THE COMELEC. THE ESTIMATED COST OF THE DAILY
PER DIEM OF THE SUPERVISING SCHOOL TEACHERS IN THE SIGNATURE
GATHERING TO BE DEPOSITED and TO BE PAID BY DELFIN AND HIS
VOLUNTEERS IS P2,571, 200.00;

3. THE PENDING PETITION BEFORE THE COMELEC IS ONLY ON THE


SIGNATURE GATHERING WHICH BY LAW COMELEC IS DUTY BOUND TO
SUPERVISE CLOSELY PURSUANT TO ITS INITIATORY JURISDICTION
UPHELD BY THE HONORABLE COURT IN ITS RECENT SEPTEMBER 26,
1996 DECISION IN THE CASE OF SUBIC BAY METROPOLITAN AUTHORITY
VS. COMELEC, ET AL. G.R. NO. 125416;

4. REP. ACT NO. 6735 APPROVED ON AUGUST 4, 1989 IS THE ENABLING


LAW IMPLEMENTING THE POWER OF PEOPLE INITIATIVE TO PROPOSE
AMENDMENTS TO THE CONSTITUTION. SENATOR DEFENSOR-
SANTIAGOS SENATE BILL NO. 1290 IS A DUPLICATION OF WHAT ARE
ALREADY PROVIDED FOR IN REP. ACT NO. 6735;

5. COMELEC RESOLUTION NO. 2300 PROMULGATED ON JANUARY 16, 1991


PURSUANT TO REP. ACT 6735 WAS UPHELD BY THE HONORABLE COURT
IN THE RECENT SEPTEMBER 26, 1996 DECISION IN THE CASE OF SUBIC
BAY METROPOLITAN AUTHORITY VS. COMELEC, ET AL. G.R. NO. 125416
WHERE THE HONORABLE COURT SAID: THE COMMISSION ON
ELECTIONS CAN DO NO LESS BY SEASONABLY AND JUDICIOUSLY
PROMULGATING GUIDELINES AND RULES FOR BOTH NATIONAL AND
LOCAL USE, IN IMPLEMENTING OF THESE LAWS.

6. EVEN SENATOR DEFENSOR-SANTIAGOS SENATE BILL NO. 1290


CONTAINS A PROVISION DELEGATING TO THE COMELEC THE POWER TO
PROMULGATE SUCH RULES AND REGULATIONS AS MAY BE NECESSARY
TO CARRY OUT THE PURPOSES OF THIS ACT. (SEC. 12, S.B. NO. 1290,
ENCLOSED AS ANNEX E, PETITION);

7. THE LIFTING OF THE LIMITATION ON THE TERM OF OFFICE OF


ELECTIVE OFFICIALS PROVIDED UNDER THE 1987 CONSTITUTION IS NOT
A REVISION OF THE CONSTITUTION. IT IS ONLY AN
AMENDMENT. AMENDMENT ENVISAGES AN ALTERATION OF ONE OR A
FEW SPECIFIC PROVISIONS OF THE CONSTITUTION. REVISION
CONTEMPLATES A RE-EXAMINATION OF THE ENTIRE DOCUMENT TO
DETERMINE HOW AND TO WHAT EXTENT IT SHOULD BE ALTERED. (PP.
412-413, 2ND. ED. 1992, 1097 PHIL. CONSTITUTION, BY JOAQUIN G.
BERNAS, S.J.).

Also on 2 January 1997, private respondent Delfin filed in his own behalf a
Comment[16] which starts off with an assertion that the instant petition is a knee-jerk
reaction to a draft Petition for Initiative on the 1987 Constitution ... which is not formally
filed yet. What he filed on 6 December 1996 was an Initiatory Pleading or Initiatory
Petition, which was legally necessary to start the signature campaign to amend the
Constitution or to put the movement to gather signatures under COMELEC power and
function. On the substantive allegations of the petitioners, Delfin maintains as follows:
(1) Contrary to the claim of the petitioners, there is a law, R.A. No. 6735, which
governs the conduct of initiative to amend the Constitution. The absence therein of a
subtitle for such initiative is not fatal, since subtitles are not requirements for the
validity or sufficiency of laws.

(2) Section 9(b) of R.A. No. 6735 specifically provides that the proposition in
an initiative to amend the Constitution approved by the majority of the votes cast in
the plebiscite shall become effective as of the day of the plebiscite.

(3) The claim that COMELEC Resolution No. 2300 is ultra vires is contradicted by
(a) Section 2, Article IX-C of the Constitution, which grants the COMELEC the
power to enforce and administer all laws and regulations relative to the conduct of an
election, plebiscite, initiative, referendum, and recall; and (b) Section 20 of R.A.
6735, which empowers the COMELEC to promulgate such rules and regulations as
may be necessary to carry out the purposes of the Act.

(4) The proposed initiative does not involve a revision of, but mere amendment to, the
Constitution because it seeks to alter only a few specific provisions of the
Constitution, or more specifically, only those which lay term limits. It does not seek to
reexamine or overhaul the entire document.

As to the public expenditures for registration of voters, Delfin considers petitioners


estimate of P180 million as unreliable, for only the COMELEC can give the exact
figure. Besides, if there will be a plebiscite it will be simultaneous with the 1997
Barangay Elections. In any event, fund requirements for initiative will be a priority
government expense because it will be for the exercise of the sovereign power of the
people.
In the Comment[17] for the public respondent COMELEC, filed also on 2 January
1997, the Office of the Solicitor General contends that:

(1) R.A. No. 6735 deals with, inter alia, peoples initiative to amend the
Constitution. Its Section 2 on Statement of Policy explicitly affirms, recognizes, and
guarantees that power; and its Section 3, which enumerates the three systems
of initiative, includes initiative on the Constitution and defines the same as the power
to propose amendments to the Constitution. Likewise, its Section 5 repeatedly
mentions initiative on the Constitution.

(2) A separate subtitle on initiative on the Constitution is not necessary in R.A. No.
6735 because, being national in scope, that system ofinitiative is deemed included in
the subtitle on National Initiative and Referendum; and Senator Tolentino simply
overlooked pertinent provisions of the law when he claimed that nothing therein was
provided for initiative on the Constitution.
(3) Senate Bill No. 1290 is neither a competent nor a material proof that R.A. No.
6735 does not deal with initiative on the Constitution.

(4) Extension of term limits of elected officials constitutes a mere amendment to the
Constitution, not a revision thereof.

(5) COMELEC Resolution No. 2300 was validly issued under Section 20 of R.A. No.
6735 and under the Omnibus Election Code. The rule-making power of the
COMELEC to implement the provisions of R.A. No. 6735 was in fact upheld by this
Court in Subic Bay Metropolitan Authority vs. COMELEC .

On 14 January 1997, this Court (a) confirmed nunc pro tunc the temporary
restraining order; (b) noted the aforementioned Comments and the Motion to Lift
Temporary Restraining Order filed by private respondents through Atty. Quadra, as well
as the latters Manifestation stating that he is the counsel for private respondents Alberto
and Carmen Pedrosa only and the Comment he filed was for the Pedrosas; and (c)
granted the Motion for Intervention filed on 6 January 1997 by Senator Raul Roco and
allowed him to file his Petition in Intervention not later than 20 January 1997; and (d) set
the case for hearing on 23 January 1997 at 9:30 a.m.
On 17 January 1997, the Demokrasya-Ipagtanggol ang Konstitusyon (DIK) and the
Movement of Attorneys for Brotherhood Integrity and Nationalism, Inc. (MABINI), filed a
Motion for Intervention. Attached to the motion was their Petition in Intervention, which
was later replaced by an Amended Petition in Intervention wherein they contend that:

(1) The Delfin proposal does not involve a mere amendment to, but a revision of, the
Constitution because, in the words of Fr. Joaquin Bernas, S.J., it would involve a
[18]

change from a political philosophy that rejects unlimited tenure to one that accepts
unlimited tenure; and although the change might appear to be an isolated one, it can
affect other provisions, such as, on synchronization of elections and on the State
policy of guaranteeing equal access to opportunities for public service and prohibiting
political dynasties. A revision cannot be done by initiative which, by express
[19]

provision of Section 2 of Article XVII of the Constitution, is limited to amendments.

(2) The prohibition against reelection of the President and the limits provided for all
other national and local elective officials are based on the philosophy of governance,
to open up the political arena to as many as there are Filipinos qualified to handle the
demands of leadership, to break the concentration of political and economic powers in
the hands of a few, and to promote effective proper empowerment for participation in
policy and decision-making for the common good; hence, to remove the term limits is
to negate and nullify the noble vision of the 1987 Constitution.

(3) The Delfin proposal runs counter to the purpose of initiative, particularly in a
conflict-of-interest situation. Initiative is intended as a fallback position that may be
availed of by the people only if they are dissatisfied with the performance of their
elective officials, but not as a premium for good performance. [20]

(4) R.A. No. 6735 is deficient and inadequate in itself to be called the enabling law
that implements the peoples initiative on amendments to the Constitution. It fails to
state (a) the proper parties who may file the petition, (b) the appropriate agency before
whom the petition is to be filed, (c) the contents of the petition, (d) the publication of
the same, (e) the ways and means of gathering the signatures of the voters nationwide
and 3% per legislative district, (f) the proper parties who may oppose or question the
veracity of the signatures, (g) the role of the COMELEC in the verification of the
signatures and the sufficiency of the petition, (h) the appeal from any decision of the
COMELEC, (I) the holding of a plebiscite, and (g) the appropriation of funds for such
peoples initiative. Accordingly, there being no enabling law, the COMELEC has no
jurisdiction to hear Delfins petition.

(5) The deficiency of R.A. No. 6735 cannot be rectified or remedied by COMELEC
Resolution No. 2300, since the COMELEC is without authority to legislate the
procedure for a peoples initiative under Section 2 of Article XVII of the
Constitution. That function exclusively pertains to Congress. Section 20 of R.A. No.
6735 does not constitute a legal basis for the Resolution, as the former does not set a
sufficient standard for a valid delegation of power.

On 20 January 1997, Senator Raul Roco filed his Petition in Intervention.[21] He avers
that R.A. No. 6735 is the enabling law that implements the peoples right to initiate
constitutional amendments. This law is a consolidation of Senate Bill No. 17 and House
Bill No. 21505; he co-authored the House Bill and even delivered a sponsorship speech
thereon. He likewise submits that the COMELEC was empowered under Section 20 of
that law to promulgate COMELEC Resolution No. 2300. Nevertheless, he contends that
the respondent Commission is without jurisdiction to take cognizance of the Delfin
Petition and to order its publication because the said petition is not the initiatory
pleading contemplated under the Constitution, Republic Act No. 6735, and COMELEC
Resolution No. 2300. What vests jurisdiction upon the COMELEC in an initiative on the
Constitution is the filing of a petition for initiative which is signed by the required number
of registered voters. He also submits that the proponents of a constitutional amendment
cannot avail of the authority and resources of the COMELEC to assist them is securing
the required number of signatures, as the COMELECs role in an initiative on the
Constitution is limited to the determination of the sufficiency of the initiative petition and
the call and supervision of a plebiscite, if warranted.
On 20 January 1997, LABAN filed a Motion for Leave to Intervene.
The following day, the IBP filed a Motion for Intervention to which it attached a
Petition in Intervention raising the following arguments:
(1) Congress has failed to enact an enabling law mandated under Section 2, Article
XVII of the 1987 Constitution.

(2) COMELEC Resolution No. 2300 cannot substitute for the required implementing
law on the initiative to amend the Constitution.

(3) The Petition for Initiative suffers from a fatal defect in that it does not have the
required number of signatures.

(4) The petition seeks, in effect a revision of the Constitution, which can be proposed
only by Congress or a constitutional convention. [22]

On 21 January 1997, we promulgated a Resolution (a) granting the Motions for


Intervention filed by the DIK and MABINI and by the IBP, as well as the Motion for
Leave to Intervene filed by LABAN; (b) admitting the Amended Petition in Intervention of
DIK and MABINI, and the Petitions in Intervention of Senator Roco and of the IBP; (c)
requiring the respondents to file within a nonextendible period of five days their
Consolidated Comments on the aforesaid Petitions in Intervention; and (d) requiring
LABAN to file its Petition in Intervention within a nonextendible period of three days from
notice, and the respondents to comment thereon within a nonextendible period of five
days from receipt of the said Petition in Intervention.
At the hearing of the case on 23 January 1997, the parties argued on the following
pivotal issues, which the Court formulated in light of the allegations and arguments
raised in the pleadings so far filed:

1. Whether R.A. No. 6735, entitled An Act Providing for a System of Initiative and
Referendum and Appropriating Funds Therefor, was intended to include or
cover initiative on amendments to the Constitution; and if so, whether the Act, as
worded, adequately covers such initiative.

2. Whether that portion of COMELEC Resolution No. 2300 (In re: Rules and
Regulations Governing the Conduct of Initiative on the Constitution, and Initiative
and Referendum on National and Local Laws) regarding the conduct of initiative on
amendments to the Constitution is valid, considering the absence in the law of specific
provisions on the conduct of such initiative.

3. Whether the lifting of term limits of elective national and local officials, as
proposed in the draft Petition for Initiative on the 1987 Constitution, would constitute
a revision of, or an amendment to, the Constitution.

4. Whether the COMELEC can take cognizance of, or has jurisdiction over, a petition
solely intended to obtain an order (a) fixing the time and dates for signature gathering;
(b) instructing municipal election officers to assist Delfin's movement and volunteers
in establishing signature stations; and (c) directing or causing the publication of, inter
alia, the unsigned proposed Petition for Initiative on the 1987 Constitution.

5. Whether it is proper for the Supreme Court to take cognizance of the petition when
there is a pending case before the COMELEC.

After hearing them on the issues, we required the parties to submit simultaneously
their respective memoranda within twenty days and requested intervenor Senator Roco
to submit copies of the deliberations on House Bill No. 21505.
On 27 January 1997, LABAN filed its Petition in Intervention wherein it adopts the
allegations and arguments in the main Petition. It further submits that the COMELEC
should have dismissed the Delfin Petition for failure to state a sufficient cause of action
and that the Commissions failure or refusal to do so constituted grave abuse of
discretion amounting to lack of jurisdiction.
On 28 January 1997, Senator Roco submitted copies of portions of both the Journal
and the Record of the House of Representatives relating to the deliberations of House
Bill No. 21505, as well as the transcripts of stenographic notes on the proceedings of
the Bicameral Conference Committee, Committee on Suffrage and Electoral Reforms,
of 6 June 1989 on House Bill No. 21505 and Senate Bill No. 17.
Private respondents Alberto and Carmen Pedrosa filed their Consolidated
Comments on the Petitions in Intervention of Senator Roco, DIK and MABINI, and
IBP.[23] The parties thereafter filed, in due time, their separate memoranda.[24]
As we stated in the beginning, we resolved to give due course to this special civil
action.
For a more logical discussion of the formulated issues, we shall first take up the fifth
issue which appears to pose a prejudicial procedural question.
I

THE INSTANT PETITION IS VIABLE DESPITE THE


PENDENCY IN THE COMELEC OF THE DELFIN
PETITION.

Except for the petitioners and intervenor Roco, the parties paid no serious attention
to the fifth issue, i.e., whether it is proper for this Court to take cognizance of this special
civil action when there is a pending case before the COMELEC. The petitioners provide
an affirmative answer. Thus:

28. The Comelec has no jurisdiction to take cognizance of the petition filed by private
respondent Delfin. This being so, it becomes imperative to stop the Comelec from
proceeding any further, and under the Rules of Court, Rule 65, Section 2, a petition
for prohibition is the proper remedy.
29. The writ of prohibition is an extraordinary judicial writ issuing out of a court of
superior jurisdiction and directed to an inferior court, for the purpose of preventing the
inferior tribunal from usurping a jurisdiction with which it is not legally vested.
(People v. Vera, supra., p. 84). In this case the writ is an urgent necessity, in view of
the highly divisive and adverse environmental consequences on the body politic of the
questioned Comelec order. The consequent climate of legal confusion and political
instability begs for judicial statesmanship.

30. In the final analysis, when the system of constitutional law is threatened by the
political ambitions of man, only the Supreme Court can save a nation in peril and
uphold the paramount majesty of the Constitution. [25]

It must be recalled that intervenor Roco filed with the COMELEC a motion to
dismiss the Delfin Petition on the ground that the COMELEC has no jurisdiction or
authority to entertain the petition.[26] The COMELEC made no ruling thereon evidently
because after having heard the arguments of Delfin and the oppositors at the hearing
on 12 December 1996, it required them to submit within five days their memoranda or
oppositions/memoranda.[27] Earlier, or specifically on 6 December 1996, it practically
gave due course to the Delfin Petition by ordering Delfin to cause the publication of the
petition, together with the attached Petition for Initiative, the signature form, and the
notice of hearing; and by setting the case for hearing. The COMELECs failure to act on
Rocos motion to dismiss and its insistence to hold on to the petition rendered ripe and
viable the instant petition under Section 2 of Rule 65 of the Rules of Court, which
provides:

SEC. 2. Petition for prohibition. -- Where the proceedings of any tribunal,


corporation, board, or person, whether exercising functions judicial or ministerial, are
without or in excess of its or his jurisdiction, or with grave abuse of discretion, and
there is no appeal or any other plain, speedy and adequate remedy in the ordinary
course of law, a person aggrieved thereby may file a verified petition in the proper
court alleging the facts with certainty and praying that judgment be rendered
commanding the defendant to desist from further proceedings in the action or matter
specified therein.

It must also be noted that intervenor Roco claims that the COMELEC has no
jurisdiction over the Delfin Petition because the said petition is not supported by the
required minimum number of signatures of registered voters. LABAN also asserts that
the COMELEC gravely abused its discretion in refusing to dismiss the Delfin Petition,
which does not contain the required number of signatures. In light of these claims, the
instant case may likewise be treated as a special civil action for certiorariunder Section I
of Rule 65 of the Rules of Court.
In any event, as correctly pointed out by intervenor Roco in his Memorandum, this
Court may brush aside technicalities of procedure in cases of transcendental
importance. As we stated in Kilosbayan, Inc. v. Guingona, Jr.:[28]
A partys standing before this Court is a procedural technicality which it may, in the
exercise of its discretion, set aside in view of the importance of issues raised. In the
landmark Emergency Powers Cases, this Court brushed aside this technicality because
the transcendental importance to the public of these cases demands that they be settled
promptly and definitely, brushing aside, if we must, technicalities of procedure.

II

R.A. NO. 6735 INTENDED TO INCLUDE THE SYSTEM


OF INITIATIVE ON AMENDMENTS TO THE
CONSTITUTION, BUT IS, UNFORTUNATELY,
INADEQUATE TO COVER THAT SYSTEM.

Section 2 of Article XVII of the Constitution provides:

SEC. 2. Amendments to this Constitution may likewise be directly proposed by the


people through initiative upon a petition of at least twelve per centum of the total
number of registered voters, of which every legislative district must be represented by
at least three per centum of the registered voters therein. No amendment under this
section shall be authorized within five years following the ratification of this
Constitution nor oftener than once every five years thereafter.

The Congress shall provide for the implementation of the exercise of this right.

This provision is not self-executory. In his book,[29] Joaquin Bernas, a member of the
1986 Constitutional Commission, stated:

Without implementing legislation Section 2 cannot operate. Thus, although this mode
of amending the Constitution is a mode of amendment which bypasses congressional
action, in the last analysis it still is dependent on congressional action.

Bluntly stated, the right of the people to directly propose amendments to the
Constitution through the system of initiative would remain entombed in the cold niche of
the Constitution until Congress provides for its implementation. Stated otherwise, while
the Constitution has recognized or granted that right, the people cannot exercise it if
Congress, for whatever reason, does not provide for its implementation.
This system of initiative was originally included in Section 1 of the draft Article on
Amendment or Revision proposed by the Committee on Amendments and Transitory
Provisions of the 1986 Constitutional Commission in its Committee Report No. 7
(Proposed Resolution No. 332).[30] That section reads as follows:

SECTION 1. Any amendment to, or revision of, this Constitution may be proposed:
(a) by the National Assembly upon a vote of three-fourths of all its members; or

(b) by a constitutional convention; or

(c) directly by the people themselves thru initiative as provided for in Article ____
Section ____ of the Constitution. [31]

After several interpellations, but before the period of amendments, the Committee
submitted a new formulation of the concept of initiative which it denominated as Section
2; thus:

MR. SUAREZ. Thank you, Madam President. May we respectfully call attention of
the Members of the Commission that pursuant to the mandate given to us last night,
we submitted this afternoon a complete Committee Report No. 7 which embodies the
proposed provision governing the matter of initiative. This is now covered by Section
2 of the complete committee report. With the permission of the Members, may I quote
Section 2:

The people may, after five years from the date of the last plebiscite held, directly
propose amendments to this Constitution thru initiative upon petition of at least ten
percent of the registered voters.

This completes the blanks appearing in the original Committee Report No. 7. [32]

The interpellations on Section 2 showed that the details for carrying out Section
2 are left to the legislature. Thus:

FR. BERNAS. Madam President, just two simple, clarificatory questions.

First, on Section 1 on the matter of initiative upon petition of at least 10 percent, there
are no details in the provision on how to carry this out. Do we understand, therefore,
that we are leaving this matter to the legislature?

MR. SUAREZ. That is right, Madam President.

FR. BERNAS. And do we also understand, therefore, that for as long as the legislature
does not pass the necessary implementing law on this, this will not operate?

MR. SUAREZ. That matter was also taken up during the committee hearing,
especially with respect to the budget appropriations which would have to be legislated
so that the plebiscite could be called. We deemed it best that this matter be left to the
legislature. The Gentleman is right. In any event, as envisioned, no amendment
through the power of initiative can be called until after five years from the date of the
ratification of this Constitution. Therefore, the first amendment that could be proposed
through the exercise of this initiative power would be after five years. It is reasonably
expected that within that five-year period, the National Assembly can come up with
the appropriate rules governing the exercise of this power.

FR. BERNAS. Since the matter is left to the legislature - the details on how this is to
be carried out - is it possible that, in effect, what will be presented to the people for
ratification is the work of the legislature rather than of the people? Does this provision
exclude that possibility?

MR. SUAREZ. No, it does not exclude that possibility because even the legislature
itself as a body could propose that amendment, maybe individually or collectively, if
it fails to muster the three-fourths vote in order to constitute itself as a constituent
assembly and submit that proposal to the people for ratification through the process of
an initiative.

xxx

MS. AQUINO. Do I understand from the sponsor that the intention in the proposal is
to vest constituent power in the people to amend the Constitution?

MR. SUAREZ. That is absolutely correct, Madam President.

MS. AQUINO. I fully concur with the underlying precept of the proposal in terms of
institutionalizing popular participation in the drafting of the Constitution or in the
amendment thereof, but I would have a lot of difficulties in terms of accepting the
draft of Section 2, as written.Would the sponsor agree with me that in the hierarchy of
legal mandate, constituent power has primacy over all other legal mandates?

MR. SUAREZ. The Commissioner is right, Madam President.

MS. AQUINO. And would the sponsor agree with me that in the hierarchy of legal
values, the Constitution is source of all legal mandates and that therefore we require a
great deal of circumspection in the drafting and in the amendments of the
Constitution?

MR. SUAREZ. That proposition is nondebatable.

MS. AQUINO. Such that in order to underscore the primacy of constituent power we
have a separate article in the constitution that would specifically cover the process and
the modes of amending the Constitution?
MR. SUAREZ. That is right, Madam President.

MS. AQUINO. Therefore, is the sponsor inclined, as the provisions are drafted
now, to again concede to the legislature the process or the requirement of determining
the mechanics of amending the Constitution by people's initiative?

MR. SUAREZ. The matter of implementing this could very well be placed in the
hands of the National Assembly, not unless we can incorporate into this provision the
mechanics that would adequately cover all the conceivable situations. [33]

It was made clear during the interpellations that the aforementioned Section 2 is
limited to proposals to AMEND -- not to REVISE -- the Constitution; thus:

MR. SUAREZ. ... This proposal was suggested on the theory that this matter of
initiative, which came about because of the extraordinary developments this year, has
to be separated from the traditional modes of amending the Constitution as embodied
in Section 1. The committee members felt that this system of initiative should not
extend to the revision of the entire Constitution, so we removed it from the operation
of Section 1 of the proposed Article on Amendment or Revision. [34]

xxx

MS. AQUINO. In which case, I am seriously bothered by providing this process of


initiative as a separate section in the Article on Amendment. Would the sponsor be
amenable to accepting an amendment in terms of realigning Section 2 as another
subparagraph (c) of Section 1, instead of setting it up as another separate section as if
it were a self-executing provision?

MR. SUAREZ. We would be amenable except that, as we clarified a while ago, this
process of initiative is limited to the matter of amendment and should not expand into
a revision which contemplates a total overhaul of the Constitution. That was the sense
that was conveyed by the Committee.

MS. AQUINO. In other words, the Committee was attempting to distinguish the
coverage of modes (a) and (b) in Section 1 to include the process of revision; whereas
the process of initiation to amend, which is given to the public, would only apply to
amendments?

MR. SUAREZ.That is right. Those were the terms envisioned in the Committee. [35]

Amendments to the proposed Section 2 were thereafter introduced by then


Commissioner Hilario G. Davide, Jr., which the Committee accepted. Thus:
MR. DAVIDE. Thank you Madam President. I propose to substitute the entire Section
2 with the following:

xxx

MR. DAVIDE. Madam President, I have modified the proposed amendment after
taking into account the modifications submitted by the sponsor himself and the
honorable Commissioners Guingona, Monsod, Rama, Ople, de los Reyes and
Romulo. The modified amendment in substitution of the proposed Section 2 will now
read as follows: "SECTION 2. -- AMENDMENTS TO THIS CONSTITUTION MAY
LIKEWISE BE DIRECTLY PROPOSED BY THE PEOPLE THROUGH
INITIATIVE UPON A PETITION OF AT LEAST TWELVE PERCENT OF THE
TOTAL NUMBER OF REGISTERED VOTERS, OF WHICH EVERY
LEGISLATIVE DISTRICT MUST BE REPRESENTED BY AT LEAST THREE
PERCENT OF THE REGISTERED VOTERS THEREOF. NO AMENDMENT
UNDER THIS SECTION SHALL BE AUTHORIZED WITHIN FIVE YEARS
FOLLOWING THE RATIFICATION OF THIS CONSTITUTION NOR OFTENER
THAN ONCE EVERY FIVE YEARS THEREAFTER.

THE NATIONAL ASSEMBLY SHALL BY LAW PROVIDE FOR THE


IMPLEMENTATION OF THE EXERCISE OF THIS RIGHT.

MR. SUAREZ. Madam President, considering that the proposed amendment is


reflective of the sense contained in Section 2 of our completed Committee Report No.
7, we accept the proposed amendment. [36]

The interpellations which ensued on the proposed modified amendment to Section


2 clearly showed that it was a legislative act which must implement the exercise of the
right. Thus:

MR. ROMULO. Under Commissioner Davide's amendment, is it possible for the


legislature to set forth certain procedures to carry out the initiative...?

MR. DAVIDE. It can.

xxx

MR. ROMULO. But the Commissioners amendment does not prevent the legislature
from asking another body to set the proposition in proper form.

MR. DAVIDE. The Commissioner is correct. In other words, the implementation of


this particular right would be subject to legislation, provided the legislature
cannot determine anymore the percentage of the requirement.
MR. ROMULO. But the procedures, including the determination of the proper form
for submission to the people, may be subject to legislation.

MR. DAVIDE. As long as it will not destroy the substantive right to initiate. In other
words, none of the procedures to be proposed by the legislative body must diminish or
impair the right conceded here.

MR. ROMULO. In that provision of the Constitution can the procedures which I have
discussed be legislated?

MR. DAVIDE. Yes. [37]

Commissioner Davide also reaffirmed that his modified amendment strictly


confines initiative to AMENDMENTS to -- NOT REVISION of -- the Constitution. Thus:

MR. DAVIDE. With pleasure, Madam President.

MR. MAAMBONG. My first question: Commissioner Davide's proposed amendment


on line 1 refers to "amendment." Does it not cover the word "revision" as defined by
Commissioner Padilla when he made the distinction between the words
"amendments" and "revision"?

MR. DAVIDE. No, it does not, because "amendments" and "revision" should be
covered by Section 1. So insofar as initiative is concerned, it can only relate to
"amendments" not "revision." [38]

Commissioner Davide further emphasized that the process of proposing


amendments through initiative must be more rigorous and difficult than the initiative on
legislation. Thus:

MR. DAVIDE. A distinction has to be made that under this proposal, what is involved
is an amendment to the Constitution. To amend a Constitution would ordinarily
require a proposal by the National Assembly by a vote of three-fourths; and to call a
constitutional convention would require a higher number. Moreover, just to submit the
issue of calling a constitutional convention, a majority of the National Assembly is
required, the import being that the process of amendment must be made more rigorous
and difficult than probably initiating an ordinary legislation or putting an end to a law
proposed by the National Assembly by way of a referendum. I cannot agree to
reducing the requirement approved by the Committee on the Legislative because it
would require another voting by the Committee, and the voting as precisely based on
a requirement of 10 percent. Perhaps, I might present such a proposal, by way of an
amendment, when the Commission shall take up the Article on the Legislative or on
the National Assembly on plenary sessions. [39]
The Davide modified amendments to Section 2 were subjected to amendments, and
the final version, which the Commission approved by a vote of 31 in favor and 3 against,
reads as follows:

MR. DAVIDE. Thank you Madam President. Section 2, as amended, reads as


follows: "AMENDMENT TO THIS CONSTITUTION MAY LIKEWISE BE
DIRECTLY PROPOSED BY THE PEOPLE THROUGH INITIATIVE UPON A
PETITION OF AT LEAST TWELVE PERCENT OF THE TOTAL NUMBER OF
REGISTERED VOTERS, OF WHICH EVERY LEGISLATIVE DISTRICT MUST
BE REPRESENTED BY AT LEAST THREE PERCENT OF THE REGISTERED
VOTERS THEREOF. NO AMENDMENT UNDER THIS SECTION SHALL BE
AUTHORIZED WITHIN FIVE YEARS FOLLOWING THE RATIFICATION OF
THIS CONSTITUTION NOR OFTENER THAN ONCE EVERY FIVE YEARS
THEREAFTER.

THE NATIONAL ASSEMBLY SHALL BY LAW PROVIDE FOR THE


IMPLEMENTATION OF THE EXERCISE OF THIS RIGHT. [40]

The entire proposed Article on Amendments or Revisions was approved on second


reading on 9 July 1986.[41] Thereafter, upon his motion for reconsideration,
Commissioner Gascon was allowed to introduce an amendment to Section 2 which,
nevertheless, was withdrawn. In view thereof, the Article was again approved
on Second and Third Readings on 1 August 1986.[42]
However, the Committee on Style recommended that the approved Section 2 be
amended by changing percent to per centum and thereof to therein and deleting the
phrase by law in the second paragraph so that said paragraph reads: The
Congress[43] shall provide for the implementation of the exercise of this right.[44] This
amendment was approved and is the text of the present second paragraph of Section 2.
The conclusion then is inevitable that, indeed, the system of initiative on the
Constitution under Section 2 of Article XVII of the Constitution is not self-executory.
Has Congress provided for the implementation of the exercise of this right? Those
who answer the question in the affirmative, like the private respondents and intervenor
Senator Roco, point to us R.A. No. 6735.
There is, of course, no other better way for Congress to implement the exercise of
the right than through the passage of a statute or legislative act. This is the essence or
rationale of the last minute amendment by the Constitutional Commission to substitute
the last paragraph of Section 2 of Article XVII then reading:

The Congress[45] shall by law provide for the implementation of the exercise of this right.

with

The Congress shall provide for the implementation of the exercise of this right.
This substitute amendment was an investiture on Congress of a power to provide
for the rules implementing the exercise of the right. The rules means the details on how
[the right] is to be carried out.[46]
We agree that R.A. No. 6735 was, as its history reveals, intended to
cover initiative to propose amendments to the Constitution. The Act is a consolidation of
House Bill No. 21505 and Senate Bill No. 17. The former was prepared by the
Committee on Suffrage and Electoral Reforms of the House of Representatives on the
basis of two House Bills referred to it, viz., (a) House Bill No. 497,[47] which dealt with the
initiative and referendum mentioned in Sections 1 and 32 of Article VI of the
Constitution; and (b) House Bill No. 988,[48] which dealt with the subject matter of House
Bill No. 497, as well as with initiative and referendum under Section 3 of Article X (Local
Government) and initiative provided for in Section 2 of Article XVII of the
Constitution. Senate Bill No. 17[49] solely dealt with initiative and referendum concerning
ordinances or resolutions of local government units. The Bicameral Conference
Committee consolidated Senate Bill No. 17 and House Bill No. 21505 into a draft bill,
which was subsequently approved on 8 June 1989 by the Senate [50] and by the House of
Representatives.[51] This approved bill is now R.A. No. 6735.
But is R.A. No. 6735 a full compliance with the power and duty of Congress to
provide for the implementation of the exercise of the right?
A careful scrutiny of the Act yields a negative answer.
First. Contrary to the assertion of public respondent COMELEC, Section 2 of the Act
does not suggest an initiative on amendments to the Constitution. The said section
reads:

SECTION 2. Statement and Policy. -- The power of the people under a system of
initiative and referendum to directly propose, enact, approve or reject, in whole or in
part, the Constitution, laws, ordinances, or resolutions passed by any legislative
body upon compliance with the requirements of this Act is hereby affirmed,
recognized and guaranteed. (Underscoring supplied).

The inclusion of the word Constitution therein was a delayed afterthought. That word is
neither germane nor relevant to said section, which exclusively relates to initiative and
referendum on national laws and local laws, ordinances, and resolutions.That section is
silent as to amendments on the Constitution. As pointed out earlier, initiative on the
Constitution is confined only to proposals to AMEND. The people are not accorded the
power to directly propose, enact, approve, or reject, in whole or in part, the Constitution
through the system of initiative. They can only do so with respect to laws, ordinances, or
resolutions.
The foregoing conclusion is further buttressed by the fact that this section was lifted
from Section 1 of Senate Bill No. 17, which solely referred to a statement of policy on
local initiative and referendum and appropriately used the phrases propose and enact,
approve or reject and in whole or in part.[52]
Second. It is true that Section 3 (Definition of Terms) of the Act defines initiative on
amendments to the Constitution and mentions it as one of the three systems
of initiative, and that Section 5 (Requirements) restates the constitutional requirements
as to the percentage of the registered voters who must submit the proposal. But unlike
in the case of the other systems of initiative, the Act does not provide for the contents of
a petition for initiative on the Constitution. Section 5, paragraph (c) requires, among
other things, statement of the proposed law sought to be enacted, approved or rejected,
amended or repealed, as the case may be. It does not include, as among the contents
of the petition, the provisions of the Constitution sought to be amended, in the case of
initiative on the Constitution. Said paragraph (c) reads in full as follows:

(c) The petition shall state the following:

c.1 contents or text of the proposed law sought to be enacted, approved or rejected,
amended or repealed, as the case may be;

c.2 the proposition;

c.3 the reason or reasons therefor;

c.4 that it is not one of the exceptions provided therein;

c.5 signatures of the petitioners or registered voters; and

c.6 an abstract or summary proposition is not more than one hundred (100) words
which shall be legibly written or printed at the top of every page of the petition.
(Underscoring supplied).

The use of the clause proposed laws sought to be enacted, approved or rejected,
amended or repealed only strengthens the conclusion that Section 2, quoted earlier,
excludes initiative on amendments to the Constitution.
Third. While the Act provides subtitles for National Initiative and Referendum
(Subtitle II) and for Local Initiative and Referendum (Subtitle III), no subtitle is provided
for initiative on the Constitution. This conspicuous silence as to the latter simply means
that the main thrust of the Act is initiative and referendum on national and local laws. If
Congress intended R.A. No. 6735 to fully provide for the implementation of
the initiative on amendments to the Constitution, it could have provided for a subtitle
therefor, considering that in the order of things, the primacy of interest, or hierarchy of
values, the right of the people to directly propose amendments to the Constitution is far
more important than the initiative on national and local laws.
We cannot accept the argument that the initiative on amendments to the
Constitution is subsumed under the subtitle on National Initiative and Referendum
because it is national in scope. Our reading of Subtitle II (National Initiative and
Referendum) and Subtitle III (Local Initiative and Referendum) leaves no room for doubt
that the classification is not based on the scope of the initiative involved, but on
its nature and character. It is national initiative, if what is proposed to be adopted or
enacted is a national law, or a law which only Congress can pass. It is local initiative if
what is proposed to be adopted or enacted is a law, ordinance, or resolution which only
the legislative bodies of the governments of the autonomous regions, provinces, cities,
municipalities, and barangays can pass. This classification of initiative
into national and local is actually based on Section 3 of the Act, which we quote for
emphasis and clearer understanding:

SEC. 3. Definition of terms --

xxx

There are three (3) systems of initiative, namely:

a.1 Initiative on the Constitution which refers to a petition proposing amendments to


the Constitution;

a.2 Initiative on Statutes which refers to a petition proposing to enact a national


legislation; and

a.3 Initiative on local legislation which refers to a petition proposing to enact a


regional, provincial, city, municipal, or barangay law, resolution or ordinance.
(Underscoring supplied).

Hence, to complete the classification under subtitles there should have been a
subtitle on initiative on amendments to the Constitution.[53]
A further examination of the Act even reveals that the subtitling is
not accurate. Provisions not germane to the subtitle on National Initiative and
Referendum are placed therein, like (1) paragraphs (b) and (c) of Section 9, which
reads:

(b) The proposition in an initiative on the Constitution approved by the majority of the
votes cast in the plebiscite shall become effective as to the day of the plebiscite.

(c) A national or local initiative proposition approved by majority of the votes cast in
an election called for the purpose shall become effective fifteen (15) days after
certification and proclamation of the Commission. (Underscoring supplied).

(2) that portion of Section 11 (Indirect Initiative) referring to indirect initiative with the
legislative bodies of local governments; thus:
SEC. 11. Indirect Initiative. -- Any duly accredited peoples organization, as defined
by law, may file a petition for indirect initiative with the House of Representatives,
and other legislative bodies....

and (3) Section 12 on Appeal, since it applies to decisions of the COMELEC on the
findings of sufficiency or insufficiency of the petition for initiative or referendum, which
could be petitions for both national and local initiative and referendum.
Upon the other hand, Section 18 on Authority of Courts under subtitle III on Local
Initiative and Referendum is misplaced,[54] since the provision therein applies to both
national and local initiative and referendum. It reads:

SEC. 18. Authority of Courts. -- Nothing in this Act shall prevent or preclude the
proper courts from declaring null and void any proposition approved pursuant to this
Act for violation of the Constitution or want of capacity of the local legislative body
to enact the said measure.

Curiously, too, while R.A. No. 6735 exerted utmost diligence and care in providing
for the details in the implementation of initiative and referendum on national and local
legislation thereby giving them special attention, it failed, rather intentionally, to do so on
the system of initiative on amendments to the Constitution. Anent the initiative on
national legislation, the Act provides for the following:

(a) The required percentage of registered voters to sign the petition and the contents of
the petition;

(b) The conduct and date of the initiative;

(c) The submission to the electorate of the proposition and the required number of
votes for its approval;

(d) The certification by the COMELEC of the approval of the proposition;

(e) The publication of the approved proposition in the Official Gazette or in a


newspaper of general circulation in the Philippines; and

(f) The effects of the approval or rejection of the proposition. [55]

As regards local initiative, the Act provides for the following:

(a) The preliminary requirement as to the number of signatures of registered voters for
the petition;

(b) The submission of the petition to the local legislative body concerned;
(c) The effect of the legislative bodys failure to favorably act thereon, and the
invocation of the power of initiative as a consequence thereof;

(d) The formulation of the proposition;

(e) The period within which to gather the signatures;

(f) The persons before whom the petition shall be signed;

(g) The issuance of a certification by the COMELEC through its official in the local
government unit concerned as to whether the required number of signatures have been
obtained;

(h) The setting of a date by the COMELEC for the submission of the proposition to
the registered voters for their approval, which must be within the period specified
therein;

(i) The issuance of a certification of the result;

(j) The date of effectivity of the approved proposition;

(k) The limitations on local initiative; and

(l) The limitations upon local legislative bodies. [56]

Upon the other hand, as to initiative on amendments to the Constitution, R.A. No.
6735, in all of its twenty-three sections, merely (a) mentions, the word Constitution in
Section 2; (b) defines initiative on the Constitution and includes it in the enumeration of
the three systems of initiative in Section 3; (c) speaks of plebiscite as the process by
which the proposition in an initiative on the Constitution may be approved or rejected by
the people; (d) reiterates the constitutional requirements as to the number of voters who
should sign the petition; and (e) provides for the date of effectivity of the approved
proposition.
There was, therefore, an obvious downgrading of the more important or the
paramount system of initiative. R.A. No. 6735 thus delivered a humiliating blow to the
system of initiative on amendments to the Constitution by merely paying it a reluctant lip
service.[57]
The foregoing brings us to the conclusion that R.A. No. 6735 is incomplete,
inadequate, or wanting in essential terms and conditions insofar as initiative on
amendments to the Constitution is concerned. Its lacunae on this substantive matter are
fatal and cannot be cured by empowering the COMELEC to promulgate such rules and
regulations as may be necessary to carry out the purposes of [the] Act. [58]
The rule is that what has been delegated, cannot be delegated or as expressed in a
Latin maxim: potestas delegata non delegari potest.[59] The recognized exceptions to the
rule are as follows:

(1) Delegation of tariff powers to the President under Section 28(2) of Article VI of
the Constitution;

(2) Delegation of emergency powers to the President under Section 23(2) of Article
VI of the Constitution;

(3) Delegation to the people at large;

(4) Delegation to local governments; and

(5) Delegation to administrative bodies. [60]

Empowering the COMELEC, an administrative body exercising quasi-judicial


functions, to promulgate rules and regulations is a form of delegation of legislative
authority under no. 5 above. However, in every case of permissible delegation, there
must be a showing that the delegation itself is valid. It is valid only if the law (a) is
complete in itself, setting forth therein the policy to be executed, carried out, or
implemented by the delegate; and (b) fixes a standard -- the limits of which are
sufficiently determinate and determinable -- to which the delegate must conform in the
performance of his functions.[61] A sufficient standard is one which defines legislative
policy, marks its limits, maps out its boundaries and specifies the public agency to apply
it. It indicates the circumstances under which the legislative command is to be
effected.[62]
Insofar as initiative to propose amendments to the Constitution is concerned, R.A.
No. 6735 miserably failed to satisfy both requirements in subordinate legislation. The
delegation of the power to the COMELEC is then invalid.
III
COMELEC RESOLUTION NO. 2300, INSOFAR AS IT PRESCRIBES RULES AND
REGULATIONS ON THE CONDUCT OF INITIATIVE ON AMENDMENTS TO THE
CONSTITUTION, IS VOID.
It logically follows that the COMELEC cannot validly promulgate rules and
regulations to implement the exercise of the right of the people to directly propose
amendments to the Constitution through the system of initiative. It does not have that
power under R.A. No. 6735. Reliance on the COMELECs power under Section 2(1) of
Article IX-C of the Constitution is misplaced, for the laws and regulations referred to
therein are those promulgated by the COMELEC under (a) Section 3 of Article IX-C of
the Constitution, or (b) a law where subordinate legislation is authorized and which
satisfies the completeness and the sufficient standard tests.
IV
COMELEC ACTED WITHOUT JURISDICTION OR WITH GRAVE ABUSE OF
DISCRETION IN ENTERTAINING THE DELFIN PETITION.
Even if it be conceded ex gratia that R.A. No. 6735 is a full compliance with the
power of Congress to implement the right to initiate constitutional amendments, or that it
has validly vested upon the COMELEC the power of subordinate legislation and that
COMELEC Resolution No. 2300 is valid, the COMELEC acted without jurisdiction or
with grave abuse of discretion in entertaining the Delfin Petition.
Under Section 2 of Article XVII of the Constitution and Section 5(b) of R.A. No.
6735, a petition for initiative on the Constitution must be signed by at least 12% of the
total number of registered voters of which every legislative district is represented by at
least 3% of the registered voters therein. The Delfin Petition does not contain signatures
of the required number of voters. Delfin himself admits that he has not yet gathered
signatures and that the purpose of his petition is primarily to obtain assistance in his
drive to gather signatures. Without the required signatures, the petition cannot be
deemed validly initiated.
The COMELEC acquires jurisdiction over a petition for initiative only after its
filing. The petition then is the initiatory pleading. Nothing before its filing is cognizable by
the COMELEC, sitting en banc. The only participation of the COMELEC or its personnel
before the filing of such petition are (1) to prescribe the form of the petition;[63] (2) to issue
through its Election Records and Statistics Office a certificate on the total number of
registered voters in each legislative district;[64] (3) to assist, through its election registrars,
in the establishment of signature stations;[65] and (4) to verify, through its election
registrars, the signatures on the basis of the registry list of voters, voters affidavits, and
voters identification cards used in the immediately preceding election. [66]
Since the Delfin Petition is not the initiatory petition under R.A. No. 6735 and
COMELEC Resolution No. 2300, it cannot be entertained or given cognizance of by the
COMELEC. The latter knew that the petition does not fall under any of the actions or
proceedings under the COMELEC Rules of Procedure or under Resolution No. 2300,
for which reason it did not assign to the petition a docket number. Hence, the said
petition was merely entered as UND, meaning, undocketed. That petition was nothing
more than a mere scrap of paper, which should not have been dignified by the Order of
6 December 1996, the hearing on 12 December 1996, and the order directing Delfin
and the oppositors to file their memoranda or oppositions. In so dignifying it, the
COMELEC acted without jurisdiction or with grave abuse of discretion and merely
wasted its time, energy, and resources.
The foregoing considered, further discussion on the issue of whether the proposal
to lift the term limits of the elective national and local officials is an amendment to, and
not a revision of, the Constitution is rendered unnecessary, if not academic.

CONCLUSION
This petition must then be granted, and the COMELEC should be permanently
enjoined from entertaining or taking cognizance of any petition for initiative on
amendments on the Constitution until a sufficient law shall have been validly enacted to
provide for the implementation of the system.
We feel, however, that the system of initiative to propose amendments to the
Constitution should no longer be kept in the cold; it should be given flesh and blood,
energy and strength. Congress should not tarry any longer in complying with the
constitutional mandate to provide for the implementation of the right of the people under
that system.
WHEREFORE, judgment is hreby rendered
a) GRANTING the instant petition;
b) DECLARING R.A. No. 6735 inadequate to cover the system of initiative on
amendments to the Constitution, and to have failed to provide sufficient standard for
subordinate legislation;
c) DECLARING void those parts of Resolutions No. 2300 of the Commission on
Elections prescribing rules and regulations on the conduct of initiative or amendments to
the Constitution; and
d) ORDERING the Commission on Elections to forthwith DISMISS the DELFIN
petition (UND-96-037).
The Temporary Restraining Order issued on 18 December 1996 is made permanent
as against the Commission on Elections, but is LIFTED against private respondents.
Resolution on the matter of contempt is hereby reserved.
SO ORDERED.
Narvasa, C.J., Regalado, Romero, Bellosillo,Kapunan, Hermosisima, Jr. and Torres
Jr., JJ., concur.
Padilla, J., took no part; related to a co-petitioner and co-counsel of the petitioners.
Melo and Mendoza, JJ., joins the separate, concurring opinions of Justices Puno,
Francisco and Panganiban.
Puno, Vitug, , Francisco and Panganiban, JJ., has separate opinions.

G.R. No. 147589 June 26, 2001

ANG BAGONG BAYANI-OFW LABOR PARTY (under the acronym OFW), represented herein by
its secretary-general, MOHAMMAD OMAR FAJARDO, petitioner,
vs.
ANG BAGONG BAYANI-OFW LABOR PARTY GO! GO! PHILIPPINES; THE TRUE MARCOS
LOYALIST ASSOCIATION OF THE PHILIPPINES; PHILIPPINE LOCAL AUTONOMY; CITIZENS
MOVEMENT FOR JUSTICE, ECONOMY, ENVIRONMENT AND PEACE; CHAMBER OF REAL
ESTATE BUILDERS ASSOCIATION; SPORTS & HEALTH ADVANCEMENT