SEN. MIRIAM DEFENSOR SANTIAGO and SEN. FRANCISCO S.

TATAD, petitioners, 7 members Lakas-National Union of Christian Democrats-United

vs. SEN. TEOFISTO T. GUINGONA, JR. and SEN. MARCELO B. FERNAN, respondents.
Muslim Democrats of the Philippines (Lakas-NUCD-
The principle of separation of powers ordains that each of the three great branches of
government has exclusive cognizance of and is supreme in matters falling within its own
UMDP)
constitutionally allocated sphere. Constitutional respect and a becoming regard for she
sovereign acts, of a coequal branch prevents this Court from prying into the internal
workings of the Senate. Where no provision of the Constitution or the laws or even the 1 member Liberal Party (LP)
Rules of the Senate is clearly shown to have been violated, disregarded or overlooked,
grave abuse of discretion cannot be imputed to Senate officials for acts done within their
1 member Aksyon Demokrasya
competence and authority. This Court will be neither a tyrant nor a wimp; rather, it will
remain steadfast and judicious in upholding the rule and majesty of the law.
1 member People's Reform Party (PRP)
The Case
1 member Gabay Bayan
On July 31, 1998, Senators Miriam Defensor Santiago and Francisco S. Tatad instituted an
original petition for quo warranto under Rule 66, Section 5, Rules of Court, seeking the 2 members Independent
ouster of Senator Teofisto T. Guingona, Jr. as minority leader of the Senate and the
declaration of Senator Tatad as the rightful minority leader.

On August 4, 1998, the Court, upon receipt of the Petition, required the respondents and
the solicitor general "to file COMMENT thereon within a non-extendible period of fifteen
(15) days from notice." On August 25, 1998, both respondents and the solicitor general
submitted their respective Comments. In compliance with a Resolution of the Court dated
September 1, 1998, petitioners filed their Consolidated Reply on September 23, 1998.
Noting said pleading, this Court gave due course to the petition and deemed the
controversy submitted for decision, without need of memoranda, on September 29, 1998.
In the regular course, the regional trial courts and this Court have concurrent jurisdiction 1 to
hear and decide petitions for quo warranto (as well as certiorari, prohibition
and mandamus), and a basic deference to the hierarchy of courts impels a filing of such
petitions in the lower tribunals. 2 However, for special and important reasons or for
exceptional and compelling circumstances, as in the present case, this Court has allowed
exceptions to this doctrine.3 In fact, original petitions for certiorari,
prohibition, mandamus and quo warranto assailing acts of legislative officers like the
Senate President4 and the Speaker of the House 5 have been recognized as exceptions to
this rule.
23 total number of senators 7 (The last six members are all
classified by petitioners as "independent".)
On the agenda for the day was the election of officers. Nominated by Sen. Blas F. Ople to
the position of Senate President was Sen. Marcelo B. Fernan. Sen. Francisco S. Tatad was
also nominated to the same position by Sen. Miriam Defenser Santiago. By a vote of 20 to
2, 8 Senator Fernan was declared the duly elected President of the Senate.
The following were likewise elected: Senator Ople as president pro tempore, and Sen.
Franklin M. Drilon as majority leader.
Senator Tatad thereafter manifested that, with the agreement of Senator Santiago,
allegedly the only other member of the minority, he was assuming the position of minority
leader. He explained that those who had voted for Senator Fernan comprised the
"majority," while only those who had voted for him, the losing nominee, belonged to the
"minority."

The Facts
The Senate of the Philippines, with Sen. John Henry R. Osmea as presiding officer,
convened on July 27, 1998 for the first regular session of the eleventh Congress. At the
time, in terms of party affiliation, the composition of the Senate was as follows: 6
10 members Laban ng Masang Pilipino (LAMP)
During the discussion on who should constitute the Senate "minority," Sen. Juan M. Flavier
manifested that the senators belonging to the Lakas-NUCD-UMDP Party numbering
seven (7) and, thus, also a minority had chosen Senator Guingona as the minority
leader. No consensus on the matter was arrived at. The following session day, the debate
on the question continued, with Senators Santiago and Tatad delivering privilege speeches.
On the third session day, the Senate met in caucus, but still failed to resolve the issue.
On July 30, 1998, the majority leader informed the body chat he was in receipt of a letter
signed by the seven Lakas-NUCD-UMDP senators,9 stating that they had elected Senator
Guingona as the minority leader. By virtue thereof, the Senate President formally
recognized Senator Guingona as the minority leader of the Senate.
The following day, Senators Santiago and Tatad filed before this Court the subject petition
for quo warranto, alleging in the main that Senator Guingona had been usurping, unlawfully
holding and exercising the position of Senate minority leader, a position that, according to
them, rightfully belonged to Senator Tatad.
Issues
From the parties' pleadings, the Court formulated the following issues for resolution:
1. Does the Court have jurisdiction over the petition?
2. Was there an actual violation of the Constitution?
3. Was Respondent Guingona usurping, unlawfully holding and
exercising the position of Senate minority leader?
4. Did Respondent Fernan act with grave abuse of discretion in
recognizing Respondent Guingona as the minority leader?
The Court's Ruling
After a close perusal of the pleadings 10 and a careful deliberation on the
arguments, pro and con, the Court finds that no constitutional or legal infirmity or grave
abuse of discretion attended the recognition of and the assumption into office by
Respondent Guingona as the Senate minority leader.
First Issue:
The Court's Jurisdiction
Petitioners principally invoke Avelino v. Cuenco 11 in arguing that this Court has jurisdiction
to settle the issue of who is the lawful Senate minority leader. They submit that the
definitions of "majority" and "minority" involve an interpretation of the Constitution,
specifically Section 16 (1), Article VI thereof, stating that "[t]he Senate shall elect its
President and the House of Representatives its Speaker, by a majority vote of all its
respective Members."
Respondents and the solicitor general, in their separate Comments, contend in common
that the issue of who is the lawful Senate minority leader is an internal matter pertaining
exclusively to the domain of the legislature, over which the Court cannot exercise
jurisdiction without transgressing the principle of separation of powers. Allegedly, no
constitutional issue is involved, as the fundamental law does not provide for the office of a
minority leader in the Senate. The legislature alone has the full discretion to provide for
such office and, in that event, to determine the procedure of selecting its occupant.
Respondents also maintain that Avelino cannot apply, because there exists no question
involving an interpretation or application of the Constitution, the laws or even the Rules of
the Senate; neither are there "peculiar circumstances" impelling the Court to assume
jurisdiction over the petition. The solicitor general adds that there is not even any legislative
practice to support the petitioners' theory that a senator who votes for the winning Senate
President is precluded from becoming the minority leader.
To resolve the issue of jurisdiction, this Court carefully reviewed and deliberated on the
various important cases involving this very important and basic question, which it has ruled
upon in the past.
The early case Avelino v. Cuenco cautiously tackled the scope of the Court's power of
judicial review; that is, questions involving an interpretation or application of a provision of
the Constitution or the law, including the rules of either house of Congress. Within this
scope falls the jurisdiction of the Court over questions on the validity of legislative or
executive acts that are political in nature, whenever the tribunal "finds constitutionally
imposed limits on powers or functions conferred upon political bodies." 12
In the aforementioned case, the Court initially declined to resolve the question of who was
the rightful Senate President, since it was deemed a political controversy falling exclusively
within the domain of the Senate. Upon a motion for reconsideration, however, the Court
ultimately assumed jurisdiction (1) "in the light of subsequent events which justify its
intervention;" and (2) because the resolution of the issue hinged on the interpretation of the
constitutional provision on the presence of a quorum to hold a session 13 and therein elect a
Senate President.
Justice Feria elucidated in his Concurring Opinion: "[I] concur with the majority that this
Court has jurisdiction over cases like the present . . . 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." 14
Justice Perfecto, also concurring, said in part:
Indeed there is no denying that the situation, as obtaining in the upper
chamber of Congress, is highly explosive. It had echoed in the House
of Representatives. It has already involved the President of the
Philippines. The situation has created a veritable national crisis, and it
is apparent that solution cannot be expected from any quarter other
than this Supreme Court, upon which the hopes of the people for an
effective settlement are pinned. 15
 . . . This case raises vital constitutional questions which no one can
settle or decide if this Court should refuse to decide them. 16
. . . The constitutional question of quorum should not be left
unanswered. 17
In Taada v. Cueno, 18 this Court endeavored to define political question. And we said that
"it refers 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 the government.' It is concerned with
issues dependent upon the wisdom, not [the] legality, of a particular measure." 19
The Court ruled that the validity of the selection of members of the Senate Electoral
Tribunal by the senators was not a political question. The choice of these members did not
depend on the Senate's "full discretionary authority," but was subject to mandatory
constitutional limitations. 20 Thus, the Court held that not only was it clearly within its
jurisdiction to pass upon the validity of the selection proceedings, but it was also its duty to
consider and determine the issue.
In another landmark case, Lansang v. Garcia, 21 Chief Justice Roberto Concepcion wrote
that the Court "had authority to and should inquire into the existence of the factual bases
required by the Constitution for the suspension of the privilege of the writ [of habeas
corpus]." This ruling was made in spite of the previous pronouncements in Barcelon v.
Baker 22 and Montenegro v. Castaeda 23 that "the authority to decide whether the exigency
has arisen requiring suspension (of the privilege . . .) belongs to the President and his
'decision is final and conclusive' upon the courts and upon all other persons." But the Chief
Justice cautioned: "the function of the Court is merely to check not to supplant the
Executive, or to ascertain merely whether he 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."
The eminent Chief Justice aptly explained later in Javellana v. Executive Secretary: 24
The reason why the issue under consideration and other issues of
similar character are justiciable, not political, is plain and simple. One
of the principal bases of the non-justiciability of so-called political
questions is the principle of separation of powers characteristic of
the presidential system of government the functions of which are
classified or divided, by reason of their nature, into three (3) categories,
namely, 1) those involving the making of laws, which are allocated to
the legislative department; 2) those concerning mainly with the
enforcement of such laws and of judicial decisions applying and/or
interpreting the same, which belong to the executive department; and
3) those dealing with the settlement of disputes, controversies or
conflicts involving rights, duties or prerogatives that are legally
demandable and enforceable, which are apportioned to courts of
justice. Within its own sphere but only within such sphere each
department is supreme and independent of the others, and each is
devoid of authority not only to encroach upon the powers or field of
action assigned to any of the other departments, but also to inquire into
or pass upon the advisability or wisdom of the acts performed,
measures taken or decisions made by the other departments
provided that such acts, measures or decisions are within the area
allocated thereto by the Constitution.
Accordingly, when the grant of power is qualified, conditional or subject
to limitations, the issue of whether or not the prescribed qualifications
or conditions have been met, or the limitations respected is justiciable
or non-political, the crux of the problem being one of legality or
validity of the contested act, not its wisdom. Otherwise, said
qualifications, conditions or limitations particularly those prescribed
by the Constitution would be set at naught. What is more, the
judicial inquiry into such issue and the settlement thereof are
the main functions of the courts of justice under the presidential form of
government adopted in our 1935 Constitution, and the system of
checks and balances, one of its basic predicates. As a consequence,
we have neither the authority nor the discretion to decline passing
upon said issue, but are under the ineluctable obligation made
particularly more exacting and peremptory by our oath, as members of
the highest Court of the land, to support and defend the Constitution
to settle it. This explains why, in Miller v. Johnson [92 Ky. 589, 18 SW
522, 523], it was held that courts have a "duty, rather than a power," to
determine whether another branch of the government has "kept within
constitutional limits."
Unlike our previous constitutions, the 1987 Constitution is explicit in defining the scope of
judicial power. The present Constitution now fortifies the authority of the courts to determine
in an appropriate action the validity of the acts of the political departments. It speaks of
judicial prerogative in terms of duty, viz.:
Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and
enforceable, and to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the
part of any branch or instrumentality of the Government. 25
This express definition has resulted in clearer and more resolute pronouncements of the
Court. Daza v. Singson, 26 Coseteng v. Mitra, Jr. 27 and Guingona Jr. v.
Gonzales 28 similarly resolved issues assailing the acts of the leaders of both houses of
Congress in apportioning among political parties the seats to which each chamber was
entitled in the Commission on Appointments. The Court held that the issue was justiciable,
"even if the question were political in nature," since it involved "the legality, not the wisdom,
of the manner of filling the Commission on Appointments as prescribed by [Section 18,
Article VI of] the Constitution."
The same question of jurisdiction was raised in Taada v. Angara, 29 wherein the determine whether or not there has been a grave abuse of discretion amounting to lack or
petitioners sought to nullify the Senate's concurrence in the ratification of the World Trade excess of jurisdiction" on the part of respondents.
Organization (WTO) Agreement. The Court ruled: "Where an action of the legislative
branch is seriously alleged to have infringed the Constitution, it becomes not only the right
Dissenting in part, Mr. Justice Vicente V. Mendoza submits that the Court has no
but in fact the duty of the judiciary to settle the dispute." The Court en banc unanimously
jurisdiction over the petition. Well-settled is the doctrine, however, that jurisdiction over the
stressed that in taking jurisdiction over petitions questioning, an act of the political
subject matter of a case is determined by the allegations of the complaint or petition,
departments of government, it will not review the wisdom, merits or propriety of such action,
regardless of whether the plaintiff or petitioner is entitled to the relief asserted. 35 In light of
and will strike it down only on either of two grounds: (1) unconstitutionality or illegality and
the aforesaid allegations of petitioners, it is clear that this Court has jurisdiction over the
(2) grave abuse of discretion.
petition. It is well within the power and jurisdiction of the Court to inquire whether indeed the
Senate or its officials committed a violation of the Constitution or gravely abused their
Earlier in Co v. Electoral Tribunal of the House of Representatives 30 (HRET), the Court discretion in the exercise of their functions and prerogatives.
refused to reverse a decision of the HRET, in the absence of a showing that said tribunal
had committed grave abuse of discretion amounting to lack of jurisdiction. The Court ruled
Second Issue:
that full authority had been conferred upon the electoral tribunals of the House of
Representatives and of the Senate as sole judges of all contests relating to the election, the
returns, and the qualifications of their respective members. Such jurisdiction is original and Violation of the Constitution
exclusive. 31 The Court may inquire into a decision or resolution of said tribunals only if
such "decision or resolution was rendered without or in excess of jurisdiction, or with grave
abuse of discretion" 32 Having assumed jurisdiction over the petition, we now go to the next crucial question: In
recognizing Respondent Guingona as the Senate minority leader, did the Senate or its
officials, particularly Senate President Fernan, violate the Constitution or the laws?
Recently, the Court, in Arroyo v. De Venecia, 33 was asked to reexamine the enrolled bill
doctrine and to look beyond the certification of the Speaker of the House of
Petitioners answer the above question in the affirmative. They contend that the
Representatives that the bill, which was later enacted as Republic Act 8240, was properly
approved by the legislative body. Petitioners claimed that certain procedural rules of the constitutional provision requiring the election of the Senate President "by majority vote of all
House had been breached in the passage of the bill. They averred further that a violation of members" carries with it a judicial duty to determine the concepts of "majority" and
"minority," as well as who may elect a minority leader. They argue that "majority" in the
the constitutionally mandated House rules was a violation of the Constitution itself.
aforequoted constitutional provision refers to that group of senators who (1) voted for the
winning Senate President and (2) accepted committee chairmanships. Accordingly, those
The Court, however, dismissed the petition, because the matter complained of concerned who voted for the losing nominee and accepted no such chairmanships comprise the
the internal procedures of the House, with which the Court had no concern. It enucleated: 34 minority, to whom the right to determine the minority leader belongs. As a result, petitioners
assert, Respondent Guingona cannot be the legitimate minority leader, since he voted for
Respondent Fernan as Senate President. Furthermore, the members of the Lakas-NUCD-
It would-be an unwarranted invasion of the prerogative of a coequal
UMDP cannot choose the minority leader, because they did not belong to the minority,
department for this Court either to set aside a legislative action as void
having voted for Fernan and accepted committee chairmanships.
because the Court thinks the House has disregarded its own rules of
procedure, or to allow those defeated in the political arena to seek a
rematch in the judicial forum when petitioners can find their remedy in We believe, however, that the interpretation proposed by petitioners finds no clear support
that department itself. The Court has not been invested with a roving from the Constitution, the laws, the Rules of the Senate or even from practices of the Upper
commission to inquire into complaints, real or imagined, of legislative House.
skullduggery. It would be acting in excess of its power and would itself
be guilty of grave abuse of discretion were it to do so. . . . In the
The term "majority" has been judicially defined a number of times. When referring to a
absence of anything to the contrary, the Court must assume that
Congress or any House thereof acted in the good faith belief that its certain number out of a total or aggregate, it simply "means the number greater than half or
conduct was permitted by its rules, and deference rather than more than half of any total."36 The plain and unambiguous words of the subject
constitutional clause simply mean that the Senate President must obtain the votes of more
disrespect is due the judgment of that body.
than one half of all the senators. Not by any construal does it thereby
delineate who comprise the "majority," much less the "minority," in the said body. And there
In the instant controversy, the petitioners one of whom is Senator Santiago, a well- is no showing that the framers of our Constitution had in mind other than the usual
known constitutionalist try to hew closely to these jurisprudential parameters. They claim meanings of these terms.
that Section 16 (1), Article VI of the constitution, has not been observed in the selection of
the Senate minority leader. They also invoke the Court's "expanded" judicial power "to
In effect, while the Constitution mandates that the President of the Senate must be elected
by a number constituting more than one half of all the members thereof, it does not provide
that the members who will not vote for him shall ipso facto constitute the "minority," who
could thereby elect the minority leader. Verily, no law or regulation states that the defeated
candidate shall automatically become the minority leader.
The Comment 37 of Respondent Guingona furnishes some relevant precedents, which were
not contested in petitioners' Reply. During the eighth Congress, which was the first to
convene after the ratification of the 1987 Constitution, the nomination of Sen. Jovito R
Salonga as Senate President was seconded by a member of the minority, then Sen.
Joseph E. Estrada. 38 During the ninth regular session, when Sen. Edgardo J. Angara
assumed the Senate presidency in 1993, a consensus was reached to assign committee
chairmanships to all senators, including those belonging to the minority. 39 This practice
continued during the tenth Congress, where even the minority leader was allowed to chair a
committee. 40 History would also show that the "majority" in either house of Congress has
referred to the political party to which the most number of lawmakers belonged, while the
"minority" normally referred to a party with a lesser number of members.
Let us go back to the definitions of the terms "majority" and "minority." Majority may also
refer to "the group, party, or faction with the larger number of votes," 41 not necessarily
more than one half. This is sometimes referred to as plurality. In contrast, minority is "a
group, party, or faction with a smaller number of votes or adherents than the
majority." 42 Between two unequal parts or numbers comprising a whole or totality, the
greater number would obviously be the majority while the lesser would be the minority. But
where there are more than two unequal groupings, it is not as easy to say which
is the minority entitled to select the leader representing all the minorities. In a government
with a multi-party system such as in the Philippines (as pointed out by petitioners
themselves), there could be several minority parties, one of which has to be indentified by
the Comelec as the "dominant minority party" for purposes of the general elections. In the
prevailing composition of the present Senate, members either belong to different political
parties or are independent. No constitutional or statutory provision prescribe which of the
many minority groups or the independents or a combination thereof has the right to select
the minority leader.
While the Constitution is explicit on the manner of electing a Senate President and a House
Speaker, it is, however, dead silent on the manner of selecting the other officers in both
chambers of Congress. All that the Charter says is that "[e]ach House shall choose such
other officers as it may deem necessary." 43 To our mind, the method of choosing who will
be such other officers is merely a derivative of the exercise of the prerogative conferred by
the aforequoted constitutional provision. Therefore, such method must be prescribed by the
Senate itself, not by this Court.
In this regard, the Constitution vests in each house of Congress the power "to determine
the rules of its proceedings." 44 Pursuant thereto, the Senate formulated and adopted a set
of rules to govern its internal affairs. 45 Pertinent to the instant case are Rules I and II
thereof, which provide:
Rule I
ELECTIVE OFFICERS
Sec 1. The Senate shall elect, in the manner hereinafter provided, a
President, a President Pro Tempore, a Secretary, and a Sergeant-at-
Arms.
These officers shall take their oath of office before entering into the
discharge of their duties.
Rule II
ELECTION OF OFFICER
Sec. 2. The officers of the Senate shall be elected by the majority vote
of all its Members. Should there be more than one candidate for the
same office, a nominal vote shall be taken; otherwise, the elections
shall be by viva voce or by resolution.
Notably, the Rules of the Senate do not provide for the positions of majority and minority
leaders. Neither is there an open clause providing specifically for such offices and
prescribing the manner of creating them or of choosing the holders thereof, At any rate,
such offices, by tradition and long practice, are actually extant. But, in the absence of
constitutional or statutory guidelines or specific rules, this Court is devoid of any basis upon
which to determine the legality of the acts of the Senate relative thereto. On grounds of
respect for the basic concept of separation of powers, courts may not intervene in the
internal affairs of the legislature; it is not within the province of courts to direct Congress
how to do its work. 46 Paraphrasing the words of Justice Florentino P. Feliciano, this Court
is of the opinion that where no specific, operable norms and standards are shown to exist,
then the legislature must be given a real and effective opportunity to fashion and
promulgate as well as to implement them, before the courts may intervene. 47
Needless to state, legislative rules, unlike statutory laws, do not have the imprints of
permanence and obligatoriness during their effectivity. In fact, they "are subject to
revocation, modification or waiver at the pleasure of the body adopting them." 48 Being
merely matters of procedure, their observance are of no concern to the courts, for said
rules may be waived or disregarded by the legislative body 49 at will, upon the concurrence
of a majority.
In view of the foregoing, Congress verily has the power and prerogative to provide for such
officers as it may deem. And it is certainly within its own jurisdiction and discretion to
prescribe the parameters for the exercise of this prerogative. This Court has no authority to
interfere and unilaterally intrude into that exclusive realm, without running afoul of
constitutional principles that it is bound to protect and uphold the very duty that justifies
the Court's being. Constitutional respect and a becoming regard for the sovereign acts of a
coequal branch prevents this Court from prying into the internal workings of the Senate. To
repeat, this Court will be neither a tyrant nor a wimp; rather, it will remain steadfast and
judicious in upholding the rule and majesty of the law.
To accede, then, to the interpretation of petitioners would practically amount to judicial
legislation, a clear breach of the constitutional doctrine of separation of powers. If for this
argument alone, the petition would easily fail.
While no provision of the Constitution or the laws or the rules and even the practice of the
Senate was violated, and while the judiciary is without power to decide matters over which
full discretionary authority has been lodged in the legislative department, this Court may still
inquire whether an act of Congress or its officials has been made with grave abuse of
discretion. 50 This is the plain implication of Section 1, Article VIII of the Constitution, which
expressly confers upon the judiciary the power and the duty not only "to settle actual
controversies involving rights which are legally demandable and enforceable," but likewise
"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."
Explaining the above-quoted clause, former Chief Justice Concepcion, who was a member
of the 1986 Constitutional Commission, said in part: 51
. . . the powers of government are generally considered divided into
three branches: the Legislative, the Executive and the Judiciary. Each
one is supreme within its own sphere and independent of the others.
Because of that supremacy[, the] power to determine whether a given
law is valid or not is vested in courts of justice.
Briefly stated, courts of justice determine the limits of power of the
agencies and offices of the government as well as those of its officers.
In other words, the judiciary is the final arbiter on the question 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 or
lack of jurisdiction. This is not only a judicial power but a duty to pass
judgment on matters of this nature.
This is the background of paragraph 2 of Section 1, which means that
the courts cannot hereafter evade the duty to settle matters of this
nature, by claiming that such matters constitute a political question.
With this paradigm, we now examine the two other issues challenging the actions, first, of
Respondent Guingona and, second, of Respondent Fernan.
Third Issue:
Usurpation of Office
Usurpation generally refers to unauthorized arbitrary assumption and exercise of
power 52 by one without color of title or who is not entitled by law thereto. 53 A quo
warranto proceeding is the proper legal remedy to determine the right or title to the
contested public office and to oust the holder from its enjoyment. 54 The action may be
brought by the solicitor general or a public prosecutor 55 or any person claiming to be
entitled to the public office or position usurped or unlawfully held or exercised by
another. 56 The action shall be brought against the person who allegedly usurped, intruded
into or is unlawfully holding of exercising such office. 57
In order for a quo warranto proceeding to be successful, the person suing must show that
he or she has aclear right to the contested office or to use or exercise the functions of the
office allegedly usurped or unlawfully held by the respondent. 58 In this case, petitioners
present no sufficient proof of a clear and indubitable franchise to the office of the Senate
minority leader.
As discussed earlier, the specific norms or standards that may be used in determining who
may lawfully occupy the disputed position has not been laid down by the Constitution, the
statutes, or the Senate itself in which the power has been vested. Absent any clear-cut
guideline, in no way can it be said that illegality or irregularity tainted Respondent
Guingona's assumption and exercise of the powers of the office of Senate minority leader.
Furthermore, no grave abuse of discretion has been shown to characterize any of his
specific acts as minority leader.
Fourth Issue:
Fernan's Recognition of Guingona
The all-embracing and plenary power and duty of the Court "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" is restricted only by the
definition and confines of the term "grave abuse of discretion."
By grave abuse of discretion is meant such capricious or whimsical
exercise of judgment as is equivalent to lack of jurisdiction. The abuse
of discretion must be patent and gross as to amount to an evasion of
positive duty or a virtual refusal to perform a duty enjoined by law, or to
act at all in contemplation of law as where the power is exercised in an
arbitrary and despotic manner by reason of passion and hostility. 59
By the above standard, we hold that Respondent Fernan did not gravely abuse his
discretion as Senate President in recognizing Respondent Guingona as the minority leader.
Let us recall that the latter belongs to one of the minority parties in the Senate, the Lakas-
NUCD-UMDP. By unanimous resolution of the members of this party that he be the minority
leader, he was recognized as such by the Senate President. Such formal recognition by
Respondent Fernan came only after at least two Senate sessions and a caucus, wherein
both sides were liberally allowed to articulate their standpoints.
Under these circumstances, we believe that the Senate President cannot be accused of
"capricious or whimsical exercise of judgment" or of "an arbitrary and despotic manner by
reason of passion or hostility." Where no provision of the Constitution, the laws or even the
rules of the Senate has been clearly shown to have been violated, disregarded or
overlooked, grave abuse of discretion cannot be imputed to Senate officials for acts done
within their competence and authority.

WHEREFORE, for the above reasons, the petition is hereby DISMISSED.

RENE A.V. SAGUISAG, WIGBERTO E. TAADA, FRANCISCO "DODONG" NEMENZO,
JR., SR. MARY JOHN MANANZAN, PACIFICO A. AGABIN, ESTEBAN "STEVE"
SALONGA, H. HARRY L. ROQUE, JR., EVALYN G. URSUA, EDRE U. OLALIA, DR.
CAROL PAGADUAN-ARAULLO, DR. ROLAND SIMBULAN, AND TEDDY
CASIO, Petitioners, vs. EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR.,
DEPARTMENT OF NATIONAL DEFENSE SECRETARY VOLTAIRE GAZMIN,
DEPARTMENT OF FOREIGN AFFAIRS SECRETARY ALBERT DEL ROSARIO, JR.,
DEPARTMENT OF BUDGET AND MANAGEMENT SECRETARY FLORENCIO ABAD,
AND ARMED FORCES OF THE PHILIPPINES CHIEF OF STAFF GENERAL EMMANUEL
T. BAUTISTA, Respondents.
The petitions1 before this Court question the constitutionality of the Enhanced Defense
Cooperation Agreement (EDCA) between the Republic of the Philippines and the United
States of America (U.S.). Petitioners allege that respondents committed grave abuse of
discretion amounting to lack or excess of jurisdiction when they entered into EDCA with the
U.S.,2 claiming that the instrument violated multiple constitutional provisions.3 In reply,
respondents argue that petitioners lack standing to bring the suit. To support the legality of
their actions, respondents invoke the 1987 Constitution, treaties, and judicial precedents.4
A proper analysis of the issues requires this Court to lay down at the outset the basic
parameters of the constitutional powers and roles of the President and the Senate in
respect of the above issues. A more detailed discussion of these powers and roles will be
made in the latter portions.
I. BROAD CONSTITUTIONAL CONTEXT OF THE POWERS OF THE PRESIDENT:
DEFENSE, FOREIGN RELATIONS, AND EDCA
A. The Prime Duty of the State and the Consolidation of Executive Power in the President
Mataimtim kong pinanunumpaan (o pinatotohanan) na tutuparin ko nang buong katapatan
at sigasig ang aking mga tungkulin bilang Pangulo (o Pangalawang Pangulo o
Nanunungkulang Pangulo) ng Pilipinas, pangangalagaan at ipagtatanggol ang kanyang
Konstitusyon, ipatutupad ang mga batas nito, magiging makatarungan sa bawat tao, at
itatalaga ang aking sarili sa paglilingkod sa Bansa. Kasihan nawa aka ng Diyos.
- Panunumpa sa Katungkulan ng Pangulo ng Pilipinas ayon sa
Saligang Batas5
The 1987 Constitution has "vested the executive power in the President of the Republic of
the Philippines."6 While the vastness of the executive power that has been consolidated in
the person of the President cannot be expressed fully in one provision, the Constitution has
stated the prime duty of the government, of which the President is the head:
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.7 (Emphases supplied)
B. The duty to protect the territory and the citizens of the Philippines, the power to call upon
the people to defend the State, and the President as Commander-in-Chief
The duty to protect the State and its people must be carried out earnestly and effectively
throughout the whole territory of the Philippines in accordance with the constitutional
provision on national territory. Hence, the President of the Philippines, as the sole
repository of executive power, is the guardian of the Philippine archipelago, including all the
islands and waters embraced therein and all other territories over which it has sovereignty
or jurisdiction. These territories consist of its terrestrial, fluvial, and aerial domains; including
its territorial sea, the seabed, the subsoil, the insular shelves, and other submarine areas;
and the waters around, between, and connecting the islands of the archipelago, regardless
of their breadth and dimensions.8
To carry out this important duty, the President is equipped with authority over the Armed
Forces of the Philippines (AFP),9 which is the protector of the people and the state. The
AFP's role is to secure the sovereignty of the State and the integrity of the national
territory.10 In addition, the Executive is constitutionally empowered to maintain peace and
order; protect life, liberty, and property; and promote the general welfare.11
In recognition of these powers, Congress has specified that the President must oversee,
ensure, and reinforce our defensive capabilities against external and internal threats12 and,
in the same vein, ensure that the country is adequately prepared for all national and local
emergencies arising from natural and man-made disasters.13
To be sure, this power is limited by the Constitution itself. To illustrate, the President may
call out the AFP to prevent or suppress instances of lawless violence, invasion or
rebellion,14 but not suspend the privilege of the writ of habeas corpus for a period
exceeding 60 days, or place the Philippines or any part thereof under martial law exceeding
that same span. In the exercise of these powers, the President is also duty-bound to submit
a report to Congress, in person or in writing, within 48 hours from the proclamation of
martial law or the suspension of the privilege of the writ of habeas corpus; and Congress
may in turn revoke the proclamation or suspension. The same provision provides for the
Supreme Court's review of the factual basis for the proclamation or suspension, as well as
the promulgation of the decision within 30 days from filing.
C. The power and duty to conduct foreign relations
The President also carries the mandate of being the sole organ in the conduct of foreign
relations.15 Since every state has the capacity to interact with and engage in relations with
other sovereign states,16 it is but logical that every state must vest in an agent the authority
to represent its interests to those other sovereign states.
The conduct of foreign relations is full of complexities and consequences, sometimes with
life and death significance to the nation especially in times of war. It can only be entrusted
to that department of government which can act on the basis of the best available
information and can decide with decisiveness. x x x It is also the President who possesses
the most comprehensive and the most confidential information about foreign countries for
our diplomatic and consular officials regularly brief him on meaningful events all over the
world. He has also unlimited access to ultra-sensitive military intelligence data. In fine, the
presidential role in foreign affairs is dominant and the President is traditionally accorded a
wider degree of discretion in the conduct of foreign affairs. The regularity, nay, validity of his
actions are adjudged under less stringent standards, lest their judicial repudiation lead to
breach of an international obligation, rupture of state relations, forfeiture of confidence,
national embarrassment and a plethora of other problems with equally undesirable
consequences.17
The role of the President in foreign affairs is qualified by the Constitution in that the Chief
Executive must give paramount importance to the sovereignty of the nation, the integrity of
its territory, its interest, and the right of the sovereign Filipino people to self-
determination.18 In specific provisions, the President's power is also limited, or at least
shared, as in Section 2 of Article II on the conduct of war; Sections 20 and 21 of Article VII
on foreign loans, treaties, and international agreements; Sections 4(2) and 5(2)(a) of Article
VIII on the judicial review of executive acts; Sections 4 and 25 of Article XVIII on treaties
and international agreements entered into prior to the Constitution and on the presence of
foreign military troops, bases, or facilities.
D. The relationship between the two major presidential functions and the role of the Senate
Clearly, the power to defend the State and to act as its representative in the international
sphere inheres in the person of the President. This power, however, does not crystallize
into absolute discretion to craft whatever instrument the Chief Executive so desires. As
previously mentioned, the Senate has a role in ensuring that treaties or international
agreements the President enters into, as contemplated in Section 21 of Article VII of the
Constitution, obtain the approval of two-thirds of its members.
Previously, treaties under the 1973 Constitution required ratification by a majority of
the Batasang Pambansa,19except in instances wherein the President "may enter into
international treaties or agreements as the national welfare and interest may
require."20 This left a large margin of discretion that the President could use to bypass the
Legislature altogether. This was a departure from the 1935 Constitution, which explicitly
gave the President the power to enter into treaties only with the concurrence of two-thirds
of all the Members of the Senate.21 The 1987 Constitution returned the Senate's
power22 and, with it, the legislative's traditional role in foreign affairs.23
The responsibility of the President when it comes to treaties and international agreements
under the present Constitution is therefore shared with the Senate. This shared role,
petitioners claim, is bypassed by EDCA.
II. HISTORICAL ANTECEDENTS OF EDCA
A. U.S. takeover of Spanish colonization and its military bases, and the transition to
Philippine independence
The presence of the U.S. military forces in the country can be traced to their pivotal victory
in the 1898 Battle of Manila Bay during the Spanish-American War.24 Spain relinquished its
sovereignty over the Philippine Islands in favor of the U.S. upon its formal surrender a few
months later.25 By 1899, the Americans had consolidated a military administration in the
archipelago.26
When it became clear that the American forces intended to impose colonial control over the
Philippine Islands, General Emilio Aguinaldo immediately led the Filipinos into an all-out
war against the U.S.27 The Filipinos were ultimately defeated in the Philippine-American
War, which lasted until 1902 and led to the downfall of the first Philippine Republic. 28 The
Americans henceforth began to strengthen their foothold in the country.29 They took over
and expanded the former Spanish Naval Base in Subic Bay, Zambales, and put up a
cavalry post called Fort Stotsenberg in Pampanga, now known as Clark Air Base.30
When talks of the eventual independence of the Philippine Islands gained ground, the U.S.
manifested the desire to maintain military bases and armed forces in the country. 31 The
U.S. Congress later enacted the Hare-Hawes-Cutting Act of 1933, which required that the
proposed constitution of an independent Philippines recognize the right of the U.S. to
maintain the latter's armed forces and military bases. 32 The Philippine Legislature rejected
that law, as it also gave the U.S. the power to unilaterally designate any part of Philippine
territory as a permanent military or naval base of the U.S. within two years from complete
independence.33
The U.S. Legislature subsequently crafted another law called the Tydings-McDuffie Act or
the Philippine Independence Act of 1934. Compared to the old Hare-Hawes-Cutting Act,
the new law provided for the surrender to the Commonwealth Government of "all military
and other reservations" of the U.S. government in the Philippines, except "naval
reservations and refueling stations."34 Furthermore, the law authorized the U.S. President to
enter into negotiations for the adjustment and settlement of all questions relating to naval
reservations and fueling stations within two years after the Philippines would have gained
independence.35 Under the Tydings-McDuffie Act, the U.S. President would proclaim the
American withdrawal and surrender of sovereignty over the islands 10 years after the
inauguration of the new government in the Philippines.36 This law eventually led to the
promulgation of the 1935 Philippine Constitution.
The original plan to surrender the military bases changed. 37 At the height of the Second
World War, the Philippine and the U.S. Legislatures each passed resolutions authorizing
their respective Presidents to negotiate the matter of retaining military bases in the country
after the planned withdrawal of the U.S.38 Subsequently, in 1946, the countries entered into
the Treaty of General Relations, in which the U.S. relinquished all control and sovereignty
over the Philippine Islands, except the areas that would be covered by the American
military bases in the country.39 This treaty eventually led to the creation of the post-colonial
legal regime on which would hinge the continued presence of U.S. military forces until
1991: the Military Bases Agreement (MBA) of 1947, the Military Assistance Agreement of
1947, and the Mutual Defense Treaty (MDT) of 1951.40
B. Former legal regime on the presence of U.S. armed forces in the territory of an
independent Philippines (1946-1991)
Soon after the Philippines was granted independence, the two countries entered into their
first military arrangement pursuant to the Treaty of General Relations - the 1947
MBA.41 The Senate concurred on the premise of "mutuality of security interest," 42 which
provided for the presence and operation of 23 U.S. military bases in the Philippines for 99
years or until the year 2046.43 The treaty also obliged the Philippines to negotiate with the
U.S. to allow the latter to expand the existing bases or to acquire new ones as military
necessity might require.44
A number of significant amendments to the 1947 MBA were made. 45 With respect to its
duration, the parties entered into the Ramos-Rusk Agreement of 1966, which reduced the
term of the treaty from 99 years to a total of 44 years or until 1991. 46 Concerning the
number of U.S. military bases in the country, the Bohlen-Serrano Memorandum of
Agreement provided for the return to the Philippines of 17 U.S. military bases covering a
total area of 117,075 hectares.47 Twelve years later, the U.S. returned Sangley Point in
Cavite City through an exchange of notes.48 Then, through the Romulo-Murphy Exchange
of Notes of 1979, the parties agreed to the recognition of Philippine sovereignty over Clark
and Subic Bases and the reduction of the areas that could be used by the U.S.
military.49 The agreement also provided for the mandatory review of the treaty every five
years.50 In 1983, the parties revised the 1947 MBA through the Romualdez-Armacost
Agreement.51 The revision pertained to the operational use of the military bases by the U.S.
government within the context of Philippine sovereignty, 52 including the need for prior
consultation with the Philippine government on the former' s use of the bases for military
combat operations or the establishment of long-range missiles.53
Pursuant to the legislative authorization granted under Republic Act No. 9,54 the President
also entered into the 1947 Military Assistance Agreement 55 with the U.S. This executive
agreement established the conditions under which U.S. military assistance would be
granted to the Philippines,56 particularly the provision of military arms, ammunitions,
supplies, equipment, vessels, services, and training for the latter's defense forces. 57 An
exchange of notes in 1953 made it clear that the agreement would remain in force until
terminated by any of the parties.58
To further strengthen their defense and security relationship, 59 the Philippines and the U.S.
next entered into the MDT in 1951. Concurred in by both the Philippine60 and the
U.S.61 Senates, the treaty has two main features: first, it allowed for mutual assistance in
maintaining and developing their individual and collective capacities to resist an armed
attack;62 and second, it provided for their mutual self-defense in the event of an armed
attack against the territory of either party.63 The treaty was premised on their recognition
that an armed attack on either of them would equally be a threat to the security of the
other.64
C. Current legal regime on the presence of U.S. armed forces in the country
In view of the impending expiration of the 1947 MBA in 1991, the Philippines and the U.S.
negotiated for a possible renewal of their defense and security relationship. 65 Termed as
the Treaty of Friendship, Cooperation and Security, the countries sought to recast their
military ties by providing a new framework for their defense cooperation and the use of
Philippine installations.66 One of the proposed provisions included an arrangement in which
U.S. forces would be granted the use of certain installations within the Philippine naval
base in Subic.67 On 16 September 1991, the Senate rejected the proposed treaty. 68
The consequent expiration of the 1947 MBA and the resulting paucity of any formal
agreement dealing with the treatment of U.S. personnel in the Philippines led to the
suspension in 1995 of large-scale joint military exercises.69In the meantime, the respective
governments of the two countries agreed70 to hold joint exercises at a substantially reduced
level.71 The military arrangements between them were revived in 1999 when they
concluded the first Visiting Forces Agreement (VFA).72
As a "reaffirm[ation] [of the] obligations under the MDT," 73 the VFA has laid down the
regulatory mechanism for the treatment of U.S. military and civilian personnel visiting the
country.74 It contains provisions on the entry and departure of U.S. personnel; the purpose,
extent, and limitations of their activities; criminal and disciplinary jurisdiction; the waiver of
certain claims; the importation and exportation of equipment, materials, supplies, and other
pieces of property owned by the U.S. government; and the movement of U.S. military
vehicles, vessels, and aircraft into and within the country. 75 The Philippines and the U.S.
also entered into a second counterpart agreement (VFA II), which in turn regulated the
treatment of Philippine military and civilian personnel visiting the U.S. 76 The Philippine
Senate concurred in the first VFA on 27 May 1999.77
Beginning in January 2002, U.S. military and civilian personnel started arriving in Mindanao
to take part in joint military exercises with their Filipino
counterparts.78 Called Balikatan, these exercises involved trainings aimed at simulating
joint military maneuvers pursuant to the MDT.79
In the same year, the Philippines and the U.S. entered into the Mutual Logistics Support
Agreement to "further the interoperability, readiness, and effectiveness of their respective
military forces"80 in accordance with the MDT, the Military Assistance Agreement of 1953,
and the VFA.81 The new agreement outlined the basic terms, conditions, and procedures
for facilitating the reciprocal provision of logistics support, supplies, and services between
the military forces of the two countries.82 The phrase "logistics support and services"
includes billeting, operations support, construction and use of temporary structures, and
storage services during an approved activity under the existing military
arrangements.83 Already extended twice, the agreement will last until 2017.84
D. The Enhanced Defense Cooperation Agreement
EDCA authorizes the U.S. military forces to have access to and conduct activities within
certain "Agreed Locations" in the country. It was not transmitted to the Senate on the
executive's understanding that to do so was no longer necessary.85 Accordingly, in June
2014, the Department of Foreign Affairs (DFA) and the U.S. Embassy exchanged
diplomatic notes confirming the completion of all necessary internal requirements for the
agreement to enter into force in the two countries.86
According to the Philippine government, the conclusion of EDCA was the result of intensive
and comprehensive negotiations in the course of almost two years. 87 After eight rounds of
negotiations, the Secretary of National Defense and the U.S. Ambassador to the
Philippines signed the agreement on 28 April 2014. 88 President Benigno S. Aquino III
ratified EDCA on 6 June 2014.89 The OSG clarified during the oral arguments90 that the
Philippine and the U.S. governments had yet to agree formally on the specific sites of the
Agreed Locations mentioned in the agreement.
Two petitions for certiorari were thereafter filed before us assailing the constitutionality of
EDCA. They primarily argue that it should have been in the form of a treaty concurred in by
the Senate, not an executive agreement.
On 10 November 2015, months after the oral arguments were concluded and the parties
ordered to file their respective memoranda, the Senators adopted Senate Resolution No.
(SR) 105.91 The resolution expresses the "strong sense"92 of the Senators that for EDCA to
become valid and effective, it must first be transmitted to the Senate for deliberation and
concurrence.
III. ISSUES
Petitioners mainly seek a declaration that the Executive Department committed grave
abuse of discretion in entering into EDCA in the form of an executive agreement. For this
reason, we cull the issues before us:
A. Whether the essential requisites for judicial review are present
B. Whether the President may enter into an executive agreement on foreign
military bases, troops, or facilities
C. Whether the provisions under EDCA are consistent with the Constitution, as
well as with existing laws and treaties
IV. DISCUSSION
A. Whether the essential requisites for judicial review have been satisfied
Petitioners are hailing this Court's power of judicial review in order to strike down EDCA for
violating the Constitution. They stress that our fundamental law is explicit in prohibiting the
presence of foreign military forces in the country, except under a treaty concurred in by the
Senate. Before this Court may begin to analyze the constitutionality or validity of an official
act of a coequal branch of government, however, petitioners must show that they have
satisfied all the essential requisites for judicial review.93
Distinguished from the general notion of judicial power, the power of judicial review
specially refers to both the authority and the duty of this Court to determine whether a
branch or an instrumentality of government has acted beyond the scope of the latter's
constitutional powers.94 As articulated in Section 1, Article VIII of the Constitution, the
power of judicial review involves the power to resolve cases in which the questions concern
the constitutionality or validity of any treaty, international or executive agreement, law,
presidential decree, proclamation, order, instruction, ordinance, or regulation.95 In Angara v.
Electoral Commission, this Court exhaustively discussed this "moderating power" as part of
the system of checks and balances under the Constitution. In our fundamental law, the role
of the Court is to determine whether a branch of government has adhered to the specific
restrictions and limitations of the latter's power:96
The separation of powers is a fundamental principle in our system of government. It obtains
not through express provision but by actual division in our Constitution. Each department of
the government has exclusive cognizance of matters within its jurisdiction, and is supreme
within its own sphere. But it does not follow from the fact that the three powers are to be
kept separate and distinct that the Constitution intended them to be absolutely unrestrained
and independent of each other. The Constitution has provided for an elaborate system of
checks and balances to secure coordination in the workings of the various departments of
the government. x x x. And the judiciary in turn, with the Supreme Court as the final
arbiter, effectively checks the other departments in the exercise of its power to determine
the law, and hence to declare executive and legislative acts void if violative of the
Constitution.
xxxx
As any human production, our Constitution is of course lacking perfection and perfectibility,
but as much as it was within the power of our people, acting through their delegates to so
provide, that instrument which is the expression of their sovereignty however limited, has
established a republican government intended to operate and function as a harmonious
whole, under a system of checks and balances, and subject to specific limitations and
restrictions provided in the said instrument. The Constitution sets forth in no uncertain
language the restrictions and limitations upon governmental powers and agencies. If these
restrictions and limitations are transcended it would be inconceivable if the Constitution had
not provided for a mechanism by which to direct the course of government along
constitutional channels, for then the distribution of powers would be mere verbiage, the bill
of rights mere expressions of sentiment, and the principles of good government mere
political apothegms. Certainly, the limitations and restrictions embodied in our Constitution
are real as they should be in any living constitution. x x x. In our case, this moderating
power is granted, if not expressly, by clear implication from section 2 of article VIII of [the
1935] Constitution.
The Constitution is a definition of the powers of government. Who is to determine the
nature, scope and extent of such powers? The Constitution itself has provided for the
instrumentality of the judiciary as the rational way. And when the judiciary mediates to
allocate constitutional boundaries, it does not assert any superiority over the other
departments; it does not in reality nullify or invalidate an act of the legislature, but only
asserts the solemn and sacred obligation assigned to it by the Constitution to determine
conflicting claims of authority under the Constitution and to establish for the parties in an
actual controversy the rights which that instrument secures and guarantees to them. This is
in truth all that is involved in what is termed "judicial supremacy" which properly is the
power of judicial review under the Constitution. x x x x. (Emphases supplied)
The power of judicial review has since been strengthened in the 1987 Constitution. The
scope of that power has been extended to the determination of whether in matters
traditionally considered to be within the sphere of appreciation of another branch of
government, an exercise of discretion has been attended with grave abuse. 97 The
expansion of this power has made the political question doctrine "no longer the
insurmountable obstacle to the exercise of judicial power or the impenetrable shield that
protects executive and legislative actions from judicial inquiry or review." 98
This moderating power, however, must be exercised carefully and only if it cannot be
completely avoided. We stress that our Constitution is so incisively designed that it
identifies the spheres of expertise within which the different branches of government shall
function and the questions of policy that they shall resolve. 99 Since the power of judicial
review involves the delicate exercise of examining the validity or constitutionality of an act
of a coequal branch of government, this Court must continually exercise restraint to avoid
the risk of supplanting the wisdom of the constitutionally appointed actor with that of its
own.100
Even as we are left with no recourse but to bare our power to check an act of a coequal
branch of government - in this case the executive - we must abide by the stringent
requirements for the exercise of that power under the Constitution. Demetria v.
Alba101 and Francisco v. House of Representatives102 cite the "pillars" of the limitations on
the power of judicial review as enunciated in the concurring opinion of U.S. Supreme Court
Justice Brandeis in Ashwander v. Tennessee Valley Authority.103 Francisco104 redressed
these "pillars" under the following categories:
1. That there be absolute necessity of deciding a case
2. That rules of constitutional law shall be formulated only as required by the
facts of the case
3. That judgment may not be sustained on some other ground
4. That there be actual injury sustained by the party by reason of the operation of
the statute
5. That the parties are not in estoppel
6. That the Court upholds the presumption of constitutionality
(Emphases supplied)
These are the specific safeguards laid down by the Court when it exercises its power of
judicial review.105 Guided by these pillars, it may invoke the power only when the following
four stringent requirements are satisfied: (a) there is an actual case or controversy; (b)
petitioners possess locus standi; (c) the question of constitutionality is raised at the earliest
opportunity; and (d) the issue of constitutionality is the lis mota of the case.106 Of these four,
the first two conditions will be the focus of our discussion.
1. Petitioners have shown the presence of an actual case or controversy.
The OSG maintains107 that there is no actual case or controversy that exists, since the
Senators have not been deprived of the opportunity to invoke the privileges of the institution
they are representing. It contends that the nonparticipation of the Senators in the present
petitions only confirms that even they believe that EDCA is a binding executive agreement
that does not require their concurrence.
It must be emphasized that the Senate has already expressed its position through SR
105.108 Through the Resolution, the Senate has taken a position contrary to that of the
OSG. As the body tasked to participate in foreign affairs by ratifying treaties, its belief that
EDCA infringes upon its constitutional role indicates that an actual controversy - albeit
brought to the Court by non-Senators, exists.
Moreover, we cannot consider the sheer abstention of the Senators from the present
proceedings as basis for finding that there is no actual case or controversy before us. We
point out that the focus of this requirement is the ripeness for adjudication of the matter at
hand, as opposed to its being merely conjectural or anticipatory. 109 The case must involve a
definite and concrete issue involving real parties with conflicting legal rights and legal
claims admitting of specific relief through a decree conclusive in nature. 110 It should not
equate with a mere request for an opinion or advice on what the law would be upon an
abstract, hypothetical, or contingent state of facts. 111 As explained in Angara v. Electoral
Commission:112
[The] 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. Any attempt at abstraction could only lead to
dialectics and barren legal questions and to sterile conclusions of wisdom, justice or
expediency of legislation. More than that, courts accord the presumption of constitutionality
to legislative enactments, not only because the legislature is presumed to abide by the
Constitution but also because the judiciary in the determination of actual cases and
controversies must reflect the wisdom and justice of the people as expressed through their
representatives in the executive and legislative departments of the government. (Emphases
supplied)
We find that the matter before us involves an actual case or controversy that is already ripe
for adjudication. The Executive Department has already sent an official confirmation to the
U.S. Embassy that "all internal requirements of the Philippines x x x have already been
complied with."113 By this exchange of diplomatic notes, the Executive Department
effectively performed the last act required under Article XII(l) of EDCA before the
agreement entered into force. Section 25, Article XVIII of the Constitution, is clear that the that petitioners cannot sue as taxpayers.124Respondent explains that EDCA is neither
presence of foreign military forces in the country shall only be allowed by virtue of a treaty meant to be a tax measure, nor is it directed at the disbursement of public funds.
concurred in by the Senate. Hence, the performance of an official act by the Executive
Department that led to the entry into force of an executive agreement was sufficient to
A taxpayer's suit concerns a case in which the official act complained of directly involves
satisfy the actual case or controversy requirement.
the illegal disbursement of public funds derived from taxation.125 Here, those challenging
the act must specifically show that they have sufficient interest in preventing the illegal
2. While petitioners Saguisag et. al., do not have legal standing, they nonetheless raise expenditure of public money, and that they will sustain a direct injury as a result of the
issues involving matters of transcendental importance. enforcement of the assailed act.126 Applying that principle to this case, they must establish
that EDCA involves the exercise by Congress of its taxing or spending powers.127
The question of locus standi or legal standing focuses on the determination of whether
those assailing the governmental act have the right of appearance to bring the matter to the We agree with the OSG that the petitions cannot qualify as taxpayers' suits. We emphasize
court for adjudication.114 They must show that they have a personal and substantial interest that a taxpayers' suit contemplates a situation in which there is already an appropriation or
in the case, such that they have sustained or are in immediate danger of sustaining, some a disbursement of public funds.128 A reading of Article X(l) of EDCA would show that there
direct injury as a consequence of the enforcement of the challenged governmental has been neither an appropriation nor an authorization of disbursement of funds. The cited
act.115 Here, "interest" in the question involved must be material - an interest that is in issue provision reads:
and will be affected by the official act - as distinguished from being merely incidental or
general.116 Clearly, it would be insufficient to show that the law or any governmental act is
All obligations under this Agreement are subject to the availability of appropriated
invalid, and that petitioners stand to suffer in some indefinite way. 117 They must show that
funds authorized for these purposes. (Emphases supplied)
they have a particular interest in bringing the suit, and that they have been or are about to
be denied some right or privilege to which they are lawfully entitled, or that they are about
to be subjected to some burden or penalty by reason of the act complained of. 118 The This provision means that if the implementation of EDCA would require the disbursement of
reason why those who challenge the validity of a law or an international agreement are public funds, the money must come from appropriated funds that are
required to allege the existence of a personal stake in the outcome of the controversy is "to specifically authorized for this purpose. Under the agreement, before there can even be a
assure the concrete adverseness which sharpens the presentation of issues upon which disbursement of public funds, there must first be a legislative action. Until and unless the
the court so largely depends for illumination of difficult constitutional questions." 119 Legislature appropriates funds for EDCA, or unless petitioners can pinpoint a specific item
in the current budget that allows expenditure under the agreement, we cannot at this time
rule that there is in fact an appropriation or a disbursement of funds that would justify the
The present petitions cannot qualify as citizens', taxpayers', or legislators' suits; the Senate
filing of a taxpayers' suit.
as a body has the requisite standing, but considering that it has not formally filed a pleading
to join the suit, as it merely conveyed to the Supreme Court its sense that EDCA needs the
Senate's concurrence to be valid, petitioners continue to suffer from lack of standing. Petitioners Bayan et al. also claim129 that their co-petitioners who are party-list
representatives have the standing to challenge the act of the Executive Department,
especially if it impairs the constitutional prerogatives, powers, and privileges of their office.
In assailing the constitutionality of a governmental act, petitioners suing as citizens may
While they admit that there is no incumbent Senator who has taken part in the present
dodge the requirement of having to establish a direct and personal interest if they show that
petition, they nonetheless assert that they also stand to sustain a derivative but substantial
the act affects a public right.120 In arguing that they have legal standing, they claim121 that
injury as legislators. They argue that under the Constitution, legislative power is vested in
the case they have filed is a concerned citizen's suit. But aside from general statements
both the Senate and the House of Representatives; consequently, it is the entire Legislative
that the petitions involve the protection of a public right, and that their constitutional rights
Department that has a voice in determining whether or not the presence of foreign military
as citizens would be violated, they fail to make any specific assertion of a particular public
should be allowed. They maintain that as members of the Legislature, they have the
right that would be violated by the enforcement of EDCA. For their failure to do so, the
requisite personality to bring a suit, especially when a constitutional issue is raised.
present petitions cannot be considered by the Court as citizens' suits that would justify a
disregard of the aforementioned requirements.
The OSG counters130 that petitioners do not have any legal standing to file the suits
122 concerning the lack of Senate concurrence in EDCA. Respondent emphasizes that the
In claiming that they have legal standing as taxpayers, petitioners aver that the
power to concur in treaties and international agreements is an "institutional prerogative"
implementation of EDCA would result in the unlawful use of public funds. They emphasize
granted by the Constitution to the Senate. Accordingly, the OSG argues that in case of an
that Article X(1) refers to an appropriation of funds; and that the agreement entails a waiver
allegation of impairment of that power, the injured party would be the Senate as an
of the payment of taxes, fees, and rentals. During the oral arguments, however, they
institution or any of its incumbent members, as it is the Senate's constitutional function that
admitted that the government had not yet appropriated or actually disbursed public funds
is allegedly being violated.
for the purpose of implementing the agreement.123 The OSG, on the other hand, maintains
The legal standing of an institution of the Legislature or of any of its Members has already They also assert that EDCA would cause grave injustice, as well as irreparable violation of
been recognized by this Court in a number of cases. 131 What is in question here is the the Constitution and of the Filipino people's rights.
alleged impairment of the constitutional duties and powers granted to, or the impermissible
intrusion upon the domain of, the Legislature or an institution thereof. 132 In the case of suits
The OSG, on the other hand, insists139 that petitioners cannot raise the mere fact that the
initiated by the legislators themselves, this Court has recognized their standing to question
present petitions involve matters of transcendental importance in order to cure their inability
the validity of any official action that they claim infringes the prerogatives, powers, and
to comply with the constitutional requirement of standing. Respondent bewails the overuse
privileges vested by the Constitution in their office.133 As aptly explained by Justice Perfecto
of "transcendental importance" as an exception to the traditional requirements of
in Mabanag v. Lopez Vito:134
constitutional litigation. It stresses that one of the purposes of these requirements is to
protect the Supreme Court from unnecessary litigation of constitutional questions.
Being members of Congress, they are even duty bound to see that the latter act within the
bounds of the Constitution which, as representatives of the people, they should uphold,
In a number of cases,140 this Court has indeed taken a liberal stance towards the
unless they are to commit a flagrant betrayal of public trust. They are representatives of the
requirement of legal standing, especially when paramount interest is involved. Indeed,
sovereign people and it is their sacred duty to see to it that the fundamental law embodying
when those who challenge the official act are able to craft an issue of transcendental
the will of the sovereign people is not trampled upon. (Emphases supplied)
significance to the people, the Court may exercise its sound discretion and take cognizance
of the suit. It may do so in spite of the inability of the petitioners to show that they have
We emphasize that in a legislators' suit, those Members of Congress who are challenging been personally injured by the operation of a law or any other government act.
the official act have standing only to the extent that the alleged violation impinges on their
right to participate in the exercise of the powers of the institution of which they are
While this Court has yet to thoroughly delineate the outer limits of this doctrine, we
members.135 Legislators have the standing "to maintain inviolate the prerogatives, powers,
emphasize that not every other case, however strong public interest may be, can qualify as
and privileges vested by the Constitution in their office and are allowed to sue to question
an issue of transcendental importance. Before it can be impelled to brush aside the
the validity of any official action, which they claim infringes their prerogatives as
essential requisites for exercising its power of judicial review, it must at the very least
legislators."136 As legislators, they must clearly show that there was a direct injury to their
consider a number of factors: (1) the character of the funds or other assets involved in the
persons or the institution to which they belong.137
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
As correctly argued by respondent, the power to concur in a treaty or an international any other party that has a more direct and specific interest in raising the present
agreement is an institutional prerogative granted by the Constitution to the Senate, not to questions.141
the entire Legislature. In Pimentel v. Office of the Executive Secretary, this Court did not
recognize the standing of one of the petitioners therein who was a member of the House of
An exhaustive evaluation of the memoranda of the parties, together with the oral
Representatives. The petition in that case sought to compel the transmission to the Senate
arguments, shows that petitioners have presented serious constitutional issues that provide
for concurrence of the signed text of the Statute of the International Criminal Court. Since
ample justification for the Court to set aside the rule on standing. The transcendental
that petition invoked the power of the Senate to grant or withhold its concurrence in a treaty
importance of the issues presented here is rooted in the Constitution itself. Section 25,
entered into by the Executive Department, only then incumbent Senator Pimentel was
Article XVIII thereof, cannot be any clearer: there is a much stricter mechanism required
allowed to assert that authority of the Senate of which he was a member.
before foreign military troops, facilities, or bases may be allowed in the country. The DFA
has already confirmed to the U.S. Embassy that "all internal requirements of the Philippines
Therefore, none of the initial petitioners in the present controversy has the standing to x x x have already been complied with."142 It behooves the Court in this instance to take a
maintain the suits as legislators. liberal stance towards the rule on standing and to determine forthwith whether there was
grave abuse of discretion on the part of the Executive Department.
Nevertheless, this Court finds that there is basis for it to review the act of the Executive for
the following reasons. We therefore rule that this case is a proper subject for judicial review.

In any case, petitioners raise issues involving matters of transcendental importance.
Petitioners138 argue that the Court may set aside procedural technicalities, as the present
petition tackles issues that are of transcendental importance. They point out that the matter
before us is about the proper exercise of the Executive Department's power to enter into
international agreements in relation to that of the Senate to concur in those agreements.
B. Whether the President may enter into an executive agreement on foreign
military bases, troops, or facilities
C. Whether the provisions under EDCA are consistent with the Constitution, as
well as with existing laws and treaties
Issues B and C shall be discussed together infra. implementation of transportation projects;154 the duty to ensure compliance with treaties,
executive agreements and executive orders;155 the authority to deport undesirable
aliens;156 the conferment of national awards under the President's jurisdiction; 157 and the
1. The role of the President as the executor of the law includes the duty to defend the State,
overall administration and control of the executive department.158
for which purpose he may use that power in the conduct of foreign relations

These obligations are as broad as they sound, for a President cannot function with crippled
Historically, the Philippines has mirrored the division of powers in the U.S. government.
hands, but must be capable of securing the rule of law within all territories of the Philippine
When the Philippine government was still an agency of the Congress of the U.S., it was as
Islands and be empowered to do so within constitutional limits. Congress cannot, for
an agent entrusted with powers categorized as executive, legislative, and judicial, and
instance, limit or take over the President's power to adopt implementing rules and
divided among these three great branches.143 By this division, the law implied that the
regulations for a law it has enacted.159
divided powers cannot be exercised except by the department given the power. 144

This divide continued throughout the different versions of the Philippine Constitution and
specifically vested the supreme executive power in the Governor-General of the
Philippines,145 a position inherited by the President of the Philippines when the country
attained independence. One of the principal functions of the supreme executive is the
responsibility for the faithful execution of the laws as embodied by the oath of office. 146 The
oath of the President prescribed by the 1987 Constitution reads thus:
I do solemnly swear (or affirm) that I will faithfully and conscientiously fulfill my duties as
President (or Vice-President or Acting President) of the Philippines, preserve and defend its
Constitution, execute its laws, do justice to every man, and consecrate myself to the service
of the Nation. So help me God. (In case of affirmation, last sentence will be
omitted.)147 (Emphases supplied)
This Court has interpreted the faithful execution clause as an obligation imposed on the
President, and not a separate grant of power. 148 Section 1 7, Article VII of the Constitution,
expresses this duty in no uncertain terms and includes it in the provision regarding the
President's power of control over the executive department, viz:
The President shall have control of all the executive departments, bureaus, and offices. He
shall ensure that the laws be faithfully executed.
The equivalent provisions in the next preceding Constitution did not explicitly require this
oath from the President. In the 1973 Constitution, for instance, the provision simply gives
the President control over the ministries.149 A similar language, not in the form of the
President's oath, was present in the 1935 Constitution, particularly in the enumeration of
executive functions.150 By 1987, executive power was codified not only in the Constitution,
but also in the Administrative Code:151
SECTION 1. Power of Control. - The President shall have control of all the executive
departments, bureaus, and offices. He shall ensure that the laws be faithfully executed.
(Emphasis supplied)
More important, this mandate is self-executory by virtue of its being inherently executive in
nature.160 As Justice Antonio T. Carpio previously wrote,161
[i]f the rules are issued by the President in implementation or execution of self-executory
constitutional powers vested in the President, the rule-making power of the President is not
a delegated legislative power. The most important self-executory constitutional power of the
President is the President's constitutional duty and mandate to "ensure that the laws be
faithfully executed." The rule is that the President can execute the law without any
delegation of power from the legislature.
The import of this characteristic is that the manner of the President's execution of the law,
even if not expressly granted by the law, is justified by necessity and limited only by law,
since the President must "take necessary and proper steps to carry into execution the
law."162 Justice George Malcolm states this principle in a grand manner: 163
The executive should be clothed with sufficient power to administer efficiently the affairs of
state. He should have complete control of the instrumentalities through whom his
responsibility is discharged. It is still true, as said by Hamilton, that "A feeble executive
implies a feeble execution of the government. A feeble execution is but another phrase for
a bad execution; and a government ill executed, whatever it may be in theory, must be in
practice a bad government." The mistakes of State governments need not be repeated
here.
xxxx
Every other consideration to one side, this remains certain - The Congress of the United
States clearly intended that the Governor-General's power should be commensurate with
his responsibility. The Congress never intended that the Governor-General should be
saddled with the responsibility of administering the government and of executing the laws
but shorn of the power to do so. The interests of the Philippines will be best served by strict
adherence to the basic principles of constitutional government.

In light of this constitutional duty, it is the President's prerogative to do whatever is legal

Hence, the duty to faithfully execute the laws of the land is inherent in executive power and
and necessary for Philippine defense interests. It is no coincidence that the constitutional
is intimately related to the other executive functions. These functions include the faithful
provision on the faithful execution clause was followed by that on the President's
execution of the law in autonomous regions;152 the right to prosecute crimes;153 the
commander-in-chief powers,164 which are specifically granted during extraordinary events of
lawless violence, invasion, or rebellion. And this duty of defending the country is unceasing,
even in times when there is no state of lawlesss violence, invasion, or rebellion. At such
times, the President has full powers to ensure the faithful execution of the laws.
It would therefore be remiss for the President and repugnant to the faithful-execution clause
of the Constitution to do nothing when the call of the moment requires increasing the
military's defensive capabilities, which could include forging alliances with states that hold a
common interest with the Philippines or bringing an international suit against an offending
state.
The context drawn in the analysis above has been termed by Justice Arturo D. Brion's
Dissenting Opinion as the beginning of a "patent misconception." 165 His dissent argues that
this approach taken in analyzing the President's role as executor of the laws is preceded by
the duty to preserve and defend the Constitution, which was allegedly overlooked.166
In arguing against the approach, however, the dissent grossly failed to appreciate the
nuances of the analysis, if read holistically and in context. The concept that the President
cannot function with crippled hands and therefore can disregard the need for Senate
concurrence in treaties167 was never expressed or implied. Rather, the appropriate reading
of the preceding analysis shows that the point being elucidated is the reality that the
President's duty to execute the laws and protect the Philippines is inextricably interwoven
with his foreign affairs powers, such that he must resolve issues imbued with both concerns
to the full extent of his powers, subject only to the limits supplied by law. In other words,
apart from an expressly mandated limit, or an implied limit by virtue of incompatibility, the
manner of execution by the President must be given utmost deference. This approach is
not different from that taken by the Court in situations with fairly similar contexts.
Thus, the analysis portrayed by the dissent does not give the President authority to bypass
constitutional safeguards and limits. In fact, it specifies what these limitations are, how
these limitations are triggered, how these limitations function, and what can be done within
the sphere of constitutional duties and limitations of the President.
Justice Brion's dissent likewise misinterprets the analysis proffered when it claims that the
foreign relations power of the President should not be interpreted in isolation. 168 The
analysis itself demonstrates how the foreign affairs function, while mostly the President's, is
shared in several instances, namely in Section 2 of Article II on the conduct of war;
Sections 20 and 21 of Article VII on foreign loans, treaties, and international agreements;
Sections 4(2) and 5(2)(a) of Article VIII on the judicial review of executive acts; Sections 4
and 25 of Article XVIII on treaties and international agreements entered into prior to the
Constitution and on the presence of foreign military troops, bases, or facilities.
In fact, the analysis devotes a whole subheading to the relationship between the two major
presidential functions and the role of the Senate in it.
This approach of giving utmost deference to presidential initiatives in respect of foreign
affairs is not novel to the Court. The President's act of treating EDCA as an executive
agreement is not the principal power being analyzed as the Dissenting Opinion seems to
suggest. Rather, the preliminary analysis is in reference to the expansive power of foreign
affairs. We have long treated this power as something the Courts must not unduly restrict.
As we stated recently in Vinuya v. Romulo:
To be sure, not all cases implicating foreign relations present political questions, and courts
certainly possess the authority to construe or invalidate treaties and executive agreements.
However, the question whether the Philippine government should espouse claims of its
nationals against a foreign government is a foreign relations matter, the authority for which
is demonstrably committed by our Constitution not to the courts but to the political
branches. In this case, the Executive Department has already decided that it is to the best
interest of the country to waive all claims of its nationals for reparations against Japan in
the Treaty of Peace of 1951. The wisdom of such decision is not for the courts to question.
Neither could petitioners herein assail the said determination by the Executive Department
via the instant petition for certiorari.
In the seminal case of US v. Curtiss-Wright Export Corp., the US Supreme Court held that
"[t]he President is the sole organ of the nation in its external relations, and its sole
representative with foreign relations."
It is quite apparent that if, in the maintenance of our international
relations, embarrassment - perhaps serious embarrassment - is to be
avoided and success for our aims achieved, congressional legislation
which is to be made effective through negotiation and inquiry within the
international field must often accord to the President a degree of
discretion and freedom from statutory restriction which would not be
admissible where domestic affairs alone involved. Moreover, he, not
Congress, has the better opportunity of knowing the conditions which
prevail in foreign countries, and especially is this true in time of war. He
has his confidential sources of information. He has his agents in the
form of diplomatic, consular and other officials ....
This ruling has been incorporated in our jurisprudence through Bavan v. Executive
Secretary and Pimentel v. Executive Secretary; its overreaching principle was, perhaps,
best articulated in (now Chief) Justice Puno's dissent in Secretary of Justice v. Lantion:
. . . The conduct of foreign relations is full of complexities and
consequences, sometimes with life and death significance to the nation
especially in times of war. It can only be entrusted to that department
of government which can act on the basis of the best available
information and can decide with decisiveness .... It is also the
President who possesses the most comprehensive and the most
confidential information about foreign countries for our diplomatic and
consular officials regularly brief him on meaningful events all over the
world. He has also unlimited access to ultra-sensitive military
intelligence data. In fine, the presidential role in foreign affairs is
dominant and the President is traditionally accorded a wider degree of
discretion in the conduct of foreign affairs. The regularity, nay, validity
 of his actions are adjudged under less stringent standards, lest their
judicial repudiation lead to breach of an international obligation, rupture
of state relations, forfeiture of confidence, national embarrassment and
a plethora of other problems with equally undesirable
consequences.169 (Emphases supplied)
Understandably, this Court must view the instant case with the same perspective and
understanding, knowing full well the constitutional and legal repercussions of any judicial
overreach.
2. The plain meaning of the Constitution prohibits the entry of foreign military bases, troops
or facilities, except by way of a treaty concurred in by the Senate - a clear limitation on the
President's dual role as defender of the State and as sole authority in foreign relations.
Despite the President's roles as defender of the State and sole authority in foreign
relations, the 1987 Constitution expressly limits his ability in instances when it involves the
entry of foreign military bases, troops or facilities. The initial limitation is found in Section 21
of the provisions on the Executive Department: "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." The specific limitation is given by Section 25 of the Transitory Provisions, the full
text of which reads as follows:
SECTION 25. After the expiration in 1991 of the Agreement between the Republic of the
Philippines and the United States of America concerning Military Bases, foreign military
bases, troops, or facilities shall not be allowed in the Philippines except under a treaty duly
concurred in by the Senate and, when the Congress so requires, ratified by a majority of
the votes cast by the people in a national referendum held for that purpose, and recognized
as a treaty by the other contracting State.
It is quite plain that the Transitory Provisions of the 1987 Constitution intended to add to the
basic requirements of a treaty under Section 21 of Article VII. This means that both
provisions must be read as additional limitations to the President's overarching executive
function in matters of defense and foreign relations.
3. The President, however, may enter into an executive agreement on foreign military
bases, troops, or facilities, if (a) it is not the instrument that allows the presence of foreign
military bases, troops, or facilities; or (b) it merely aims to implement an existing law or
treaty.
Again we refer to Section 25, Article XVIII of the Constitution:
SECTION 25. After the expiration in 1991 of the Agreement between the Republic of the
Philippines and the United States of America concerning Military Bases, foreign military
bases, troops, or facilities shall not be allowed in the Philippines except under a
treaty duly concurred in by the Senate and, when the Congress so requires, ratified by a
majority of the votes cast by the people in a national referendum held for that purpose, and
recognized as a treaty by the other contracting State. (Emphases supplied)
In view of this provision, petitioners argue170 that EDCA must be in the form of a "treaty"
duly concurred in by the Senate. They stress that the Constitution is unambigous in
mandating the transmission to the Senate of all international agreements concluded after
the expiration of the MBA in 1991 - agreements that concern the presence of foreign
military bases, troops, or facilities in the country. Accordingly, petitioners maintain that the
Executive Department is not given the choice to conclude agreements like EDCA in the
form of an executive agreement.
This is also the view of the Senate, which, through a majority vote of 15 of its members -
with 1 against and 2 abstaining - says in SR 105171 that EDCA must be submitted to the
Senate in the form of a treaty for concurrence by at least two-thirds of all its members.
The Senate cites two constitutional provisions (Article VI, Section 21 and Article XVIII,
Section 25) to support its position. Compared with the lone constitutional provision that the
Office of the Solicitor General (OSG) cites, which is Article XVIII, Section 4(2), which
includes the constitutionality of "executive agreement(s)" among the cases subject to the
Supreme Court's power of judicial review, the Constitution clearly requires submission of
EDCA to the Senate. Two specific provisions versus one general provision means that the
specific provisions prevail. The term "executive agreement" is "a term wandering alone in
the Constitution, bereft of provenance and an unidentified constitutional mystery."
The author of SR 105, Senator Miriam Defensor Santiago, upon interpellation even added
that the MDT, which the Executive claims to be partly implemented through EDCA, is
already obsolete.
There are two insurmountable obstacles to this Court's agreement with SR 105, as well as
with the comment on interpellation made by Senator Santiago.
First, the concept of "executive agreement" is so well-entrenched in this Court's
pronouncements on the powers of the President. When the Court validated the concept of
"executive agreement," it did so with full knowledge of the Senate's role in concurring in
treaties. It was aware of the problematique of distinguishing when an international
agreement needed Senate concurrence for validity, and when it did not; and the Court
continued to validate the existence of "executive agreements" even after the 1987
Constitution.172 This follows a long line of similar decisions upholding the power of the
President to enter into an executive agreement.173
Second, the MDT has not been rendered obsolescent, considering that as late as
2009,174 this Court continued to recognize its validity.
Third, to this Court, a plain textual reading of Article XIII, Section 25, inevitably leads to the
conclusion that it applies only to a proposed agreement between our government and a
foreign government, whereby military bases, troops, or facilities of such foreign government The verb "allow" is followed by the word "in," which is a preposition used to indicate "place
would be "allowed" or would "gain entry" Philippine territory. or position in space or anything having material extension: Within the limits or bounds of,
within (any place or thing)."183 That something is the Philippines, which is the noun that
follows.
Note that the provision "shall not be allowed" is a negative injunction. This wording signifies
that the President is not authorized by law to allow foreign military bases, troops, or
facilities to enter the Philippines, except under a treaty concurred in by the Senate. Hence, It is evident that the constitutional restriction refers solely to the initial entry of the foreign
the constitutionally restricted authority pertains to the entry of the bases, troops, or facilities, military bases, troops, or facilities. Once entry is authorized, the subsequent acts are
and not to the activities to be done after entry. thereafter subject only to the limitations provided by the rest of the Constitution and
Philippine law, and not to the Section 25 requirement of validity through a treaty.
Under the principles of constitutional construction, of paramount consideration is the plain
meaning of the language expressed in the Constitution, or the verba legis rule.175 It is The VFA has already allowed the entry of troops in the Philippines. This Court stated in Lim
presumed that the provisions have been carefully crafted in order to express the objective it v. Executive Secretary:
seeks to attain.176 It is incumbent upon the Court to refrain from going beyond the plain
meaning of the words used in the Constitution. It is presumed that the framers and the
After studied reflection, it appeared farfetched that the ambiguity surrounding the meaning
people meant what they said when they said it, and that this understanding was reflected in
of the word "activities" arose from accident. In our view, it was deliberately made that way
the Constitution and understood by the people in the way it was meant to be understood
to give both parties a certain leeway in negotiation. In this manner, visiting US forces may
when the fundamental law was ordained and promulgated.177 As this Court has often said:
sojourn in Philippine territory for purposes other than military. As conceived, the joint
exercises may include training on new techniques of patrol and surveillance to protect the
We look to the language of the document itself in our search for its meaning. We do not of nation's marine resources, sea search-and-rescue operations to assist vessels in distress,
course stop there, but that is where we begin. It is to be assumed that the words in which disaster relief operations, civic action projects such as the building of school houses,
constitutional provisions are couched express the objective sought to be attained. They are medical and humanitarian missions, and the like.
to be given their ordinary meaning except where technical terms are employed in which
case the significance thus attached to them prevails. As the Constitution is not primarily a
Under these auspices, the VFA gives legitimacy to the current Balikatan exercises. It is only
lawyer's document, it being essential for the rule of law to obtain that it should ever be
logical to assume that "Balikatan 02-1," a "mutual anti- terrorism advising, assisting and
present in the people's consciousness, its language as much as possible should be
training exercise," falls under the umbrella of sanctioned or allowable activities in the
understood in the sense they have in common use. What it says according to the text of the
context of the agreement. Both the history and intent of the Mutual Defense Treaty and the
provision to be construed compels acceptance and negates the power of the courts to alter
VFA support the conclusion that combat-related activities -as opposed to combat itself-such
it, based on the postulate that the framers and the people mean what they say. Thus, these
as the one subject of the instant petition, are indeed authorized. 184 (Emphasis supplied)
are the cases where the need for construction is reduced to a minimum.178(Emphases
supplied)
Moreover, the Court indicated that the Constitution continues to govern the conduct of
foreign military troops in the Philippines,185 readily implying the legality of their initial entry
It is only in those instances in which the constitutional provision is unclear, ambiguous, or
into the country.
silent that further construction must be done to elicit its meaning. 179 In Ang Bagong Bayani-
OFW v. Commission on Elections,180 we reiterated this guiding principle:
The OSG emphasizes that EDCA can be in the form of an executive agreement, since it
merely involves "adjustments in detail" in the implementation of the MDT and the VFA. 186 It
it [is] safer to construe the Constitution from what appears upon its face. The proper
points out that there are existing treaties between the Philippines and the U.S. that have
interpretation therefore depends more on how it was understood by the people adopting it
already been concurred in by the Philippine Senate and have thereby met the requirements
than in the framers' understanding thereof. (Emphases supplied)
of the Constitution under Section 25. Because of the status of these prior agreements,
respondent emphasizes that EDCA need not be transmitted to the Senate.
The effect of this statement is surprisingly profound, for, if taken literally, the phrase "shall
not be allowed in the Philippines" plainly refers to the entry of bases, troops, or facilities in
The aforecited Dissenting Opinion of Justice Brion disagrees with
the country. The Oxford English Dictionary defines the word "allow" as a transitive verb that
the ponencia's application of verba legis construction to the words of Article XVIII, Section
means "to permit, enable"; "to give consent to the occurrence of or relax restraint on (an
25.187 It claims that the provision is "neither plain, nor that simple." 188 To buttress its
action, event, or activity)"; "to consent to the presence or attendance of (a person)"; and,
disagreement, the dissent states that the provision refers to a historical incident, which is
when with an adverbial of place, "to permit (a person or animal) to go, come, or be in, out,
the expiration of the 1947 MBA.189 Accordingly, this position requires questioning the
near, etc."181 Black's Law Dictionary defines the term as one that means "[t]o grant,
circumstances that led to the historical event, and the meaning of the terms under Article
approve, or permit."182
XVIII, Section 25.
This objection is quite strange. The construction technique of verba legis is not inapplicable additional layer, nor the vigorous statements of this Court that affirm the continued
just because a provision has a specific historical context. In fact, every provision of the existence of that class of international agreements called "executive agreements."
Constitution has a specific historical context. The purpose of constitutional and statutory
construction is to set tiers of interpretation to guide the Court as to how a particular
The power of the President to enter into binding executive agreements without Senate
provision functions. Verba legis is of paramount consideration, but it is not the only
concurrence is already well-established in this jurisdiction.193 That power has been alluded
consideration. As this Court has often said:
to in our present and past Constitutions,194 in various statutes,195 in Supreme Court
decisions,196 and during the deliberations of the Constitutional Commission. 197 They cover a
We look to the language of the document itself in our search for its meaning. We do not of wide array of subjects with varying scopes and purposes, 198 including those that involve the
course stop there, but that is where we begin. It is to be assumed that the words in which presence of foreign military forces in the country.199
constitutional provisions are couched express the objective sought to be attained. They are
to be given their ordinary meaning except where technical terms are employed in which
As the sole organ of our foreign relations200 and the constitutionally assigned chief architect
case the significance thus attached to them prevails. As the Constitution is not primarily a
of our foreign policy,201the President is vested with the exclusive power to conduct and
lawyer's document, it being essential for the rule of law to obtain that it should ever be
manage the country's interface with other states and governments. Being the principal
present in the people's consciousness, its language as much as possible should be
representative of the Philippines, the Chief Executive speaks and listens for the nation;
understood in the sense they have in common use. What it says according to the text of the
initiates, maintains, and develops diplomatic relations with other states and governments;
provision to be construed compels acceptance and negates the power of the courts to alter
negotiates and enters into international agreements; promotes trade, investments, tourism
it, based on the postulate that the framers and the people mean what they say. Thus, these
and other economic relations; and settles international disputes with other states. 202
are the cases where the need for construction is reduced to a minimum.190(Emphases
supplied)
As previously discussed, this constitutional mandate emanates from the inherent power of
the President to enter into agreements with other states, including the prerogative to
As applied, verba legis aids in construing the ordinary meaning of terms. In this case, the
conclude binding executive agreements that do not require further Senate concurrence.
phrase being construed is "shall not be allowed in the Philippines" and not the preceding
The existence of this presidential power203 is so well-entrenched that Section 5(2)(a), Article
one referring to "the expiration in 1991 of the Agreement between the Republic of the
VIII of the Constitution, even provides for a check on its exercise. As expressed below,
Philippines and the United States of America concerning Military Bases, foreign military
executive agreements are among those official governmental acts that can be the subject
bases, troops, or facilities." It is explicit in the wording of the provision itself that any
of this Court's power of judicial review:
interpretation goes beyond the text itself and into the discussion of the framers, the context
of the Constitutional Commission's time of drafting, and the history of the 1947 MBA.
Without reference to these factors, a reader would not understand those terms. However, (2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or
for the phrase "shall not be allowed in the Philippines," there is no need for such reference. the Rules of Court may provide, final judgments and orders of lower courts in:
The law is clear. No less than the Senate understood this when it ratified the VFA.
(a) All cases in which the constitutionality or
4. The President may generally enter into executive agreements subject to limitations validity of any treaty, international or executive agreement, law,
defined by the Constitution and may be in furtherance of a treaty already concurred in by presidential decree, proclamation, order, instruction, ordinance, or
the Senate. regulation is in question. (Emphases supplied)

We discuss in this section why the President can enter into executive agreements. In Commissioner of Customs v. Eastern Sea Trading, executive agreements are defined as
"international agreements embodying adjustments of detail carrying out well-established
national policies and traditions and those involving arrangements of a more or less
It would be helpful to put into context the contested language found in Article XVIII, Section
temporary nature."204 In Bayan Muna v. Romulo, this Court further clarified that executive
25. Its more exacting requirement was introduced because of the previous experience of
agreements can cover a wide array of subjects that have various scopes and
the country when its representatives felt compelled to consent to the old MBA. 191 They felt
purposes.205 They are no longer limited to the traditional subjects that are usually covered
constrained to agree to the MBA in fulfilment of one of the major conditions for the country
by executive agreements as identified in Eastern Sea Trading. The Court thoroughly
to gain independence from the U.S.192 As a result of that experience, a second layer of
discussed this matter in the following manner:
consent for agreements that allow military bases, troops and facilities in the country is now
articulated in Article XVIII of our present Constitution.
The categorization of subject matters that may be covered by international
agreementsmentioned in Eastern Sea Trading is not cast in stone. x x x.
This second layer of consent, however, cannot be interpreted in such a way that we
completely ignore the intent of our constitutional framers when they provided for that
As may be noted, almost half a century has elapsed since the Court rendered its decision MS. AQUINO: Madam President, first I would like a clarification from the Committee. We
in Eastern Sea Trading. Since then, the conduct of foreign affairs has become more have retained the words "international agreement" which I think is the correct judgment on
complex and the domain of international law wider, as to include such subjects as human the matter because an international agreement is different from a treaty. A treaty is a
rights, the environment, and the sea. In fact, in the US alone, the executive agreements contract between parties which is in the nature of international agreement and also a
executed by its President from 1980 to 2000 covered subjects such as defense, trade, municipal law in the sense that the people are bound. So there is a conceptual difference.
scientific cooperation, aviation, atomic energy, environmental cooperation, peace corps, However, I would like to be clarified if the international agreements include executive
arms limitation, and nuclear safety, among others. Surely, the enumeration in Eastern Sea agreements.
Trading cannot circumscribe the option of each state on the matter of which
the international agreement format would be convenient to serve its best interest. As
MR. CONCEPCION: That depends upon the parties. All parties to these international
Francis Sayre said in his work referred to earlier:
negotiations stipulate the conditions which are necessary for the agreement or whatever it
may be to become valid or effective as regards the parties.
. . . It would be useless to undertake to discuss here the large variety of executive
agreements as such concluded from time to time. Hundreds of executive agreements, other
MS. AQUINO: Would that depend on the parties or would that depend on the nature of the
than those entered into under the trade-agreement act, have been negotiated with foreign
executive agreement? According to common usage, there are two types of executive
governments. . . . They cover such subjects as the inspection of vessels, navigation dues,
agreement: one is purely proceeding from an executive act which affects external relations
income tax on shipping profits, the admission of civil air craft, custom matters and
independent of the legislative and the other is an executive act in pursuance of legislative
commercial relations generally, international claims, postal matters, the registration of
authorization. The first kind might take the form of just conventions or exchanges of notes
trademarks and copyrights, etc .... (Emphases Supplied)
or protocol while the other, which would be pursuant to the legislative authorization, may be
in the nature of commercial agreements.
One of the distinguishing features of executive agreements is that their validity and
effectivity are not affected by a lack of Senate concurrence. 206 This distinctive feature was
MR. CONCEPCION: Executive agreements are generally made to implement a treaty
recognized as early as in Eastern Sea Trading (1961), viz:
already enforced or to determine the details for the implementation of the treaty. We are
speaking of executive agreements, not international agreements.
Treaties are formal documents which require ratification with the approval of two-thirds of
the Senate. Executive agreements become binding through executive action without the
MS. AQUINO: I am in full agreement with that, except that it does not cover the first kind of
need of a vote by the Senate or by Congress.
executive agreement which is just protocol or an exchange of notes and this would be in
the nature of reinforcement of claims of a citizen against a country, for example.
xxxx
MR. CONCEPCION: The Commissioner is free to require ratification for validity insofar as
[T]he right of the Executive to enter into binding agreements without the necessity of the Philippines is concerned.
subsequent Congressional approval has been confirmed by long usage. From the earliest
days of our history we have entered into executive agreements covering such subjects as
MS. AQUINO: It is my humble submission that we should provide, unless the Committee
commercial and consular relations, most-favored-nation rights, patent rights, trademark and
explains to us otherwise, an explicit proviso which would except executive agreements from
copyright protection, postal and navigation arrangements and the settlement of
the requirement of concurrence of two-thirds of the Members of the Senate. Unless I am
claims. The validity of these has never been seriously questioned by our courts. (Emphases
enlightened by the Committee I propose that tentatively, the sentence should read. "No
Supplied)
treaty or international agreement EXCEPT EXECUTIVE AGREEMENTS shall be valid and
effective."
That notion was carried over to the present Constitution. In fact, the framers specifically
deliberated on whether the general term "international agreement" included executive
FR. BERNAS: I wonder if a quotation from the Supreme Court decision [in Eastern Sea
agreements, and whether it was necessary to include an express proviso that would
Trading] might help clarify this:
exclude executive agreements from the requirement of Senate concurrence. After noted
constitutionalist Fr. Joaquin Bernas quoted the Court's ruling in Eastern Sea Trading, the
Constitutional Commission members ultimately decided that the term "international The right of the executive to enter into binding agreements without the necessity of
agreements" as contemplated in Section 21, Article VII, does not include executive subsequent Congressional approval has been confirmed by long usage. From the earliest
agreements, and that a proviso is no longer needed. Their discussion is reproduced days of our history, we have entered into executive agreements covering such subjects as
below:207 commercial and consular relations, most favored nation rights, patent rights, trademark and
copyright protection, postal and navigation arrangements and the settlement of claims. The
validity of this has never been seriously questioned by our Courts.
Agreements with respect to the registration of trademarks have been concluded by the
executive of various countries under the Act of Congress of March 3, 1881 (21 Stat. 502) . .
. International agreements involving political issues or changes of national policy and
those involving international agreements of a permanent character usually take the form
of treaties. But international agreements embodying adjustments of detail, carrying out well
established national policies and traditions and those involving arrangements of a more or
less temporary nature usually take the form of executive agreements.
MR. ROMULO: Is the Commissioner, therefore, excluding the executive agreements?
FR. BERNAS: What we are referring to, therefore, when we say international agreements
which need concurrence by at least two-thirds are those which are permanent in nature.
MS. AQUINO: And it may include commercial agreements which are executive agreements
essentially but which are proceeding from the authorization of Congress. If that is our
understanding, then I am willing to withdraw that amendment.
FR. BERNAS: If it is with prior authorization of Congress, then it does not need subsequent
concurrence by Congress.
MS. AQUINO: In that case, I am withdrawing my amendment.
MR. TINGSON: Madam President.
THE PRESIDENT: Is Commissioner Aquino satisfied?
MS. AQUINO: Yes. There is already an agreement among us on the definition of "executive
agreements" and that would make unnecessary any explicit proviso on the matter.
xxx
MR. GUINGONA: I am not clear as to the meaning of "executive agreements" because I
heard that these executive agreements must rely on treaties. In other words, there must
first be treaties.
MR. CONCEPCION: No, I was speaking about the common use, as executive agreements
being the implementation of treaties, details of which do not affect the sovereignty of the
State.
MR. GUINGONA: But what about the matter of permanence, Madam President? Would 99
years be considered permanent? What would be the measure of permanency? I do not
conceive of a treaty that is going to be forever, so there must be some kind of a time limit.
MR. CONCEPCION: I suppose the Commissioner's question is whether this type of
agreement should be included in a provision of the Constitution requiring the concurrence
of Congress.
MR. GUINGONA: It depends on the concept of the executive agreement of which I am not
clear. If the executive agreement partakes of the nature of a treaty, then it should also be
included.
MR. CONCEPCION: Whether it partakes or not of the nature of a treaty, it is within the
power of the Constitutional Commission to require that.
MR. GUINGONA: Yes. That is why I am trying to clarify whether the words "international
agreements" would include executive agreements.
MR. CONCEPCION: No, not necessarily; generally no.
xxx
MR. ROMULO: I wish to be recognized first. I have only one question. Do we take it,
therefore, that as far as the Committee is concerned, the term "international agreements"
does not include the term "executive agreements" as read by the Commissioner in that
text?
FR. BERNAS: Yes. (Emphases Supplied)
The inapplicability to executive agreements of the requirements under Section 21 was
again recognized in Bayan v. Zamora and in Bayan Muna v. Romulo. These cases, both
decided under the aegis of the present Constitution, quoted Eastern Sea Trading in
reiterating that executive agreements are valid and binding even without the concurrence of
the Senate.
Executive agreements may dispense with the requirement of Senate concurrence because
of the legal mandate with which they are concluded. As culled from the afore-quoted
deliberations of the Constitutional Commission, past Supreme Court Decisions, and works
of noted scholars,208 executive agreements merely involve arrangements on the
implementation of existing policies, rules, laws, or agreements. They are concluded (1) to
adjust the details of a treaty;209 (2) pursuant to or upon confirmation by an act of the
Legislature;210 or (3) in the exercise of the President's independent powers under the
Constitution.211 The raison d'etre of executive agreements hinges on prior constitutional or
legislative authorizations.
The special nature of an executive agreement is not just a domestic variation in
international agreements. International practice has accepted the use of various forms and
designations of international agreements, ranging from the traditional notion of a treaty -
which connotes a formal, solemn instrument - to engagements concluded in modem,
simplified forms that no longer necessitate ratification. 212 An international agreement may
take different forms: treaty, act, protocol, agreement, concordat, compromis
d'arbitrage, convention, covenant, declaration, exchange of notes, statute, pact, charter,
agreed minute, memorandum of agreement, modus vivendi, or some other
form.213 Consequently, under international law, the distinction between a treaty and an
international agreement or even an executive agreement is irrelevant for purposes of
determining international rights and obligations.
However, this principle does not mean that the domestic law distinguishing treaties,
international agreements, and executive agreements is relegated to a mere variation in
form, or that the constitutional requirement of Senate concurrence is demoted to an
optional constitutional directive. There remain two very important features that
distinguish treaties from executive agreements and translate them into terms of art in the
domestic setting.
First, executive agreements must remain traceable to an express or implied authorization
under the Constitution, statutes, or treaties. The absence of these precedents puts the
validity and effectivity of executive agreements under serious question for the main function
of the Executive is to enforce the Constitution and the laws enacted by the Legislature, not
to defeat or interfere in the performance of these rules. 214 In turn, executive agreements
cannot create new international obligations that are not expressly allowed or reasonably
implied in the law they purport to implement.
Second, treaties are, by their very nature, considered superior to executive agreements.
Treaties are products of the acts of the Executive and the Senate 215 unlike executive
agreements, which are solely executive actions.216Because of legislative participation
through the Senate, a treaty is regarded as being on the same level as a statute. 217 If there
is an irreconcilable conflict, a later law or treaty takes precedence over one that is
prior.218 An executive agreement is treated differently. Executive agreements that are
inconsistent with either a law or a treaty are considered ineffective. 219 Both types of
international agreement are nevertheless subject to the supremacy of the Constitution. 220
This rule does not imply, though, that the President is given carte blanche to exercise this
discretion. Although the Chief Executive wields the exclusive authority to conduct our
foreign relations, this power must still be exercised within the context and the parameters
set by the Constitution, as well as by existing domestic and international laws. There are
constitutional provisions that restrict or limit the President's prerogative in concluding
international agreements, such as those that involve the following:
a. The policy of freedom from nuclear weapons within Philippine territory221
b. The fixing of tariff rates, import and export quotas, tonnage and wharfage
dues, and other duties or imposts, which must be pursuant to the authority
granted by Congress222
c. The grant of any tax exemption, which must be pursuant to a law concurred in
by a majority of all the Members of Congress223
d. The contracting or guaranteeing, on behalf of the Philippines, of foreign loans
that must be previously concurred in by the Monetary Board224
e. The authorization of the presence of foreign military bases, troops, or facilities
in the country must be in the form of a treaty duly concurred in by the Senate.225
f. For agreements that do not fall under paragraph 5, the concurrence of the
Senate is required, should the form of the government chosen be a treaty.
5. The President had the choice to enter into EDCA by way of an executive agreement or a
treaty.
No court can tell the President to desist from choosing an executive agreement over a
treaty to embody an international agreement, unless the case falls squarely within Article
VIII, Section 25.
As can be gleaned from the debates among the members of the Constitutional
Commission, they were aware that legally binding international agreements were being
entered into by countries in forms other than a treaty. At the same time, it is clear that they
were also keen to preserve the concept of "executive agreements" and the right of the
President to enter into such agreements.
What we can glean from the discussions of the Constitutional Commissioners is that they
understood the following realities:
1. Treaties, international agreements, and executive agreements are all
constitutional manifestations of the conduct of foreign affairs with their distinct
legal characteristics.
a. Treaties are formal contracts between the Philippines and other
States-parties, which are in the nature of international agreements, and
also of municipal laws in the sense of their binding nature.226
b. International agreements are similar instruments, the provisions of
which may require the ratification of a designated number of parties
thereto. These agreements involving political issues or changes in
national policy, as well as those involving international agreements of a
permanent character, usually take the form of treaties. They may also
 include commercial agreements, which are executive agreements
essentially, but which proceed from previous authorization by
Congress, thus dispensing with the requirement of concurrence by the
Senate.227
c. Executive agreements are generally intended to implement a treaty
already enforced or to determine the details of the implementation
thereof that do not affect the sovereignty of the State.228
2. Treaties and international agreements that cannot be mere executive
agreements must, by constitutional decree, be concurred in by at least two-thirds
of the Senate.
3. However, an agreement - the subject of which is the entry of foreign military
troops, bases, or facilities - is particularly restricted. The requirements are that it
be in the form of a treaty concurred in by the Senate; that when Congress so
requires, it be ratified by a majority of the votes cast by the people in a national
referendum held for that purpose; and that it be recognized as a treaty by the
other contracting State.
4. Thus, executive agreements can continue to exist as a species of international
agreements.
That is why our Court has ruled the way it has in several cases.
In Bayan Muna v. Romulo, we ruled that the President acted within the scope of her
constitutional authority and discretion when she chose to enter into the RP-U.S. Non-
Surrender Agreement in the form of an executive agreement, instead of a treaty, and in
ratifying the agreement without Senate concurrence. The Court en banc discussed this
intrinsic presidential prerogative as follows:
Petitioner parlays the notion that the Agreement is of dubious validity, partaking as it does
of the nature of a treaty; hence, it must be duly concurred in by the Senate. x x x x.
Pressing its point, petitioner submits that the subject of the Agreement does not fall under
any of the subject-categories that xx x may be covered by an executive agreement, such as
commercial/consular relations, most-favored nation rights, patent rights, trademark and
copyright protection, postal and navigation arrangements and settlement of claims.
The categorization of subject matters that may be covered by international agreements
mentioned in Eastern Sea Trading is not cast in stone. There are no hard and fast rules on
the propriety of entering, on a given subject, into a treaty or an executive agreement as an
instrument of international relations. The primary consideration in the choice of the form of
agreement is the parties' intent and desire to craft an international agreement in the form
they so wish to further their respective interests. Verily, the matter of form takes a back
seat when it comes to effectiveness and binding effect of the enforcement of a treaty or an
executive agreement, as the parties in either international agreement each labor under
the pacta sunt servanda principle.
xxxx
But over and above the foregoing considerations is the fact that - save for the situation and
matters contemplated in Sec. 25, Art. XVIII of the Constitution - when a treaty is
required, the Constitution does not classify any subject, like that involving political issues, to
be in the form of, and ratified as, a treaty. What the Constitution merely prescribes is that
treaties need the concurrence of the Senate by a vote defined therein to complete the
ratification process.
xxxx
x x x. As the President wields vast powers and influence, her conduct in the external affairs
of the nation is, as Bayan would put it, "executive altogether." The right of the President to
enter into or ratify binding executive agreements has been confirmed by long practice.
In thus agreeing to conclude the Agreement thru E/N BF0-028-03, then President Gloria
Macapagal-Arroyo, represented by the Secretary of Foreign Affairs, acted within the scope
of the authority and discretion vested in her by the Constitution. At the end of the day, the
President - by ratifying, thru her deputies, the non-surrender agreement - did nothing more
than discharge a constitutional duty and exercise a prerogative that pertains to her
office. (Emphases supplied)
Indeed, in the field of external affairs, the President must be given a larger measure of
authority and wider discretion, subject only to the least amount of checks and restrictions
under the Constitution.229 The rationale behind this power and discretion was recognized by
the Court in Vinuya v. Executive Secretary, cited earlier.230
Section 9 of Executive Order No. 459, or the Guidelines in the Negotiation of International
Agreements and its Ratification, thus, correctly reflected the inherent powers of the
President when it stated that the DFA "shall determine whether an agreement is an
executive agreement or a treaty."
Accordingly, in the exercise of its power of judicial review, the Court does not look into
whether an international agreement should be in the form of a treaty or an executive
agreement, save in cases in which the Constitution or a statute requires otherwise. Rather,
in view of the vast constitutional powers and prerogatives granted to the President in the
field of foreign affairs, the task of the Court is to determine whether the international
agreement is consistent with the applicable limitations.
6. Executive agreements may cover the matter of foreign military forces if it merely involves
detail adjustments.
The practice of resorting to executive agreements in adjusting the details of a law or a
treaty that already deals with the presence of foreign military forces is not at all unusual in
this jurisdiction. In fact, the Court has already implicitly acknowledged this practice in Lim v.
Executive Secretary.231 In that case, the Court was asked to scrutinize the constitutionality
of the Terms of Reference of the Balikatan 02-1 joint military exercises, which sought to
implement the VFA. Concluded in the form of an executive agreement, the Terms of
Reference detailed the coverage of the term "activities" mentioned in the treaty and settled
the matters pertaining to the construction of temporary structures for the U.S. troops during
the activities; the duration and location of the exercises; the number of participants; and the
extent of and limitations on the activities of the U.S. forces. The Court upheld the Terms of
Reference as being consistent with the VFA. It no longer took issue with the fact that
the Balikatan Terms of Reference was not in the form of a treaty concurred in by the
Senate, even if it dealt with the regulation of the activities of foreign military forces on
Philippine territory.
In Nicolas v. Romulo,232 the Court again impliedly affirmed the use of an executive
agreement in an attempt to adjust the details of a provision of the VFA. The Philippines and
the U.S. entered into the Romulo-Kenney Agreement, which undertook to clarify the
detention of a U.S. Armed Forces member, whose case was pending appeal after his
conviction by a trial court for the crime of rape. In testing the validity of the latter agreement,
the Court precisely alluded to one of the inherent limitations of an executive agreement: it
cannot go beyond the terms of the treaty it purports to implement. It was eventually ruled
that the Romulo-Kenney Agreement was "not in accord" with the VFA, since the former was
squarely inconsistent with a provision in the treaty requiring that the detention be "by
Philippine authorities." Consequently, the Court ordered the Secretary of Foreign Affairs to
comply with the VFA and "forthwith negotiate with the United States representatives for the
appropriate agreement on detention facilities under Philippine authorities as provided in Art.
V, Sec. 10 of the VFA. "233
Culling from the foregoing discussions, we reiterate the following pronouncements to guide
us in resolving the present controversy:
1. Section 25, Article XVIII of the Constitution, contains stringent requirements
that must be fulfilled by the international agreement allowing the presence of
foreign military bases, troops, or facilities in the Philippines: (a) the agreement
must be in the form of a treaty, and (b) it must be duly concurred in by the
Senate.
2. If the agreement is not covered by the above situation, then the President may
choose the form of the agreement (i.e., either an executive agreement or a
treaty), provided that the agreement dealing with foreign military bases, troops, or
facilities is not the principal agreement that first allows their entry or presence in
the Philippines.
3. The executive agreement must not go beyond the parameters, limitations, and
standards set by the law and/or treaty that the former purports to implement; and
must not unduly expand the international obligation expressly mentioned or
necessarily implied in the law or treaty.
4. The executive agreement must be consistent with the Constitution, as well as
with existing laws and treaties.
In light of the President's choice to enter into EDCA in the form of an executive agreement,
respondents carry the burden of proving that it is a mere implementation of existing laws
and treaties concurred in by the Senate. EDCA must thus be carefully dissected to
ascertain if it remains within the legal parameters of a valid executive agreement.
7. EDCA is consistent with the content, purpose, and framework of the MDT and the VFA
The starting point of our analysis is the rule that "an executive agreement xx x may not be
used to amend a treaty."234 In Lim v. Executive Secretary and in Nicolas v. Romulo, the
Court approached the question of the validity of executive agreements by comparing them
with the general framework and the specific provisions of the treaties they seek to
implement.
In Lim, the Terms of Reference of the joint military exercises was scrutinized by studying
"the framework of the treaty antecedents to which the Philippines bound itself,"235 i.e., the
MDT and the VFA. The Court proceeded to examine the extent of the term "activities" as
contemplated in Articles 1236 and II237 of the VFA. It later on found that the term "activities"
was deliberately left undefined and ambiguous in order to permit "a wide scope of
undertakings subject only to the approval of the Philippine government" 238 and thereby
allow the parties "a certain leeway in negotiation."239 The Court eventually ruled that the
Terms of Reference fell within the sanctioned or allowable activities, especially in the
context of the VFA and the MDT.
The Court applied the same approach to Nicolas v. Romulo. It studied the provisions of the
VFA on custody and detention to ascertain the validity of the Romulo-Kenney
Agreement.240 It eventually found that the two international agreements were not in accord,
since the Romulo-Kenney Agreement had stipulated that U.S. military personnel shall be
detained at the U.S. Embassy Compound and guarded by U.S. military personnel, instead
of by Philippine authorities. According to the Court, the parties "recognized the difference
between custody during the trial and detention after conviction." 241 Pursuant to Article V(6)
of the VFA, the custody of a U.S. military personnel resides with U.S. military authorities
during trial. Once there is a finding of guilt, Article V(l0) requires that the confinement or
detention be "by Philippine authorities."
Justice Marvic M.V.F. Leonen's Dissenting Opinion posits that EDCA "substantially
modifies or amends the VFA"242and follows with an enumeration of the differences between
EDCA and the VFA. While these arguments will be rebutted more fully further on, an initial
answer can already be given to each of the concerns raised by his dissent.
The first difference emphasized is that EDCA does not only regulate visits as the VFA does,
but allows temporary stationing on a rotational basis of U.S. military personnel and their
contractors in physical locations with permanent facilities and pre-positioned military
materiel.
This argument does not take into account that these permanent facilities, while built by U.S.
forces, are to be owned by the Philippines once constructed. 243 Even the VFA allowed
construction for the benefit of U.S. forces during their temporary visits.
The second difference stated by the dissent is that EDCA allows the prepositioning of
military materiel, which can include various types of warships, fighter planes, bombers, and
vessels, as well as land and amphibious vehicles and their corresponding ammunition. 244
However, the VFA clearly allows the same kind of equipment, vehicles, vessels, and aircraft
to be brought into the country. Articles VII and VIII of the VFA contemplates that U.S.
equipment, materials, supplies, and other property are imported into or acquired in the
Philippines by or on behalf of the U.S. Armed Forces; as are vehicles, vessels, and aircraft
operated by or for U.S. forces in connection with activities under the VFA. These provisions
likewise provide for the waiver of the specific duties, taxes, charges, and fees that
correspond to these equipment.
The third difference adverted to by the Justice Leonen's dissent is that the VFA
contemplates the entry of troops for training exercises, whereas EDCA allows the use of
territory for launching military and paramilitary operations conducted in other states.245 The
dissent of Justice Teresita J. Leonardo-De Castro also notes that VFA was intended for
non-combat activides only, whereas the entry and activities of U.S. forces into Agreed
Locations were borne of military necessity or had a martial character, and were therefore
not contemplated by the VFA.246
This Court's jurisprudence however established in no uncertain terms that combat-related
activities, as opposed to actual combat, were allowed under the MDT and VFA, viz:
Both the history and intent of the Mutual Defense Treaty and the VFA support the
conclusion that combat-related activities as opposed to combat itself such as the one
subject of the instant petition, are indeed authorized.247
Hence, even if EDCA was borne of military necessity, it cannot be said to have strayed
from the intent of the VFA since EDCA's combat-related components are allowed under the
treaty.
Moreover, both the VFA and EDCA are silent on what these activities actually are. Both the
VFA and EDCA deal with the presence of U.S. forces within the Philippines, but make no
mention of being platforms for activity beyond Philippine territory. While it may be that, as
applied, military operations under either the VFA or EDCA would be carried out in the future
the scope of judicial review does not cover potential breaches of discretion but only actual
occurrences or blatantly illegal provisions. Hence, we cannot invalidate EDCA on the basis
of the potentially abusive use of its provisions.
The fourth difference is that EDCA supposedly introduces a new concept not contemplated
in the VFA or the MDT: Agreed Locations, Contractors, Pre-positioning, and Operational
Control.248
As previously mentioned, these points shall be addressed fully and individually in the latter
analysis of EDCA's provisions. However, it must already be clarified that the terms and
details used by an implementing agreement need not be found in the mother treaty. They
must be sourced from the authority derived from the treaty, but are not necessarily
expressed word-for-word in the mother treaty. This concern shall be further elucidated in
this Decision.
The fifth difference highlighted by the Dissenting Opinion is that the VFA does not have
provisions that may be construed as a restriction on or modification of obligations found in
existing statues, including the jurisdiction of courts, local autonomy, and taxation. Implied in
this argument is that EDCA contains such restrictions or modifications. 249
This last argument cannot be accepted in view of the clear provisions of EDCA. Both the
VFA and EDCA ensure Philippine jurisdiction in all instances contemplated by both
agreements, with the exception of those outlined by the VFA in Articles III-VI. In the VFA,
taxes are clearly waived whereas in EDCA, taxes are assumed by the government as will
be discussed later on. This fact does not, therefore, produce a diminution of jurisdiction on
the part of the Philippines, but rather a recognition of sovereignty and the rights that attend
it, some of which may be waived as in the cases under Articles III-VI of the VFA.
Taking off from these concerns, the provisions of EDCA must be compared with those of
the MDT and the VFA, which are the two treaties from which EDCA allegedly draws its
validity.
"Authorized presence" under the VFA versus "authorized activities" under EDCA: (1) U.S.
personnel and (2) U.S. contractors
The OSG argues250 that EDCA merely details existing policies under the MDT and the VFA.
It explains that EDCA articulates the principle of defensive preparation embodied in Article
II of the MDT; and seeks to enhance the defensive, strategic, and technological capabilities
of both parties pursuant to the objective of the treaty to strengthen those capabilities to
prevent or resist a possible armed attack. Respondent also points out that EDCA simply
implements Article I of the VFA, which already allows the entry of U.S. troops and
personnel into the country. Respondent stresses this Court's recognition in Lim v. Executive
Secretary that U.S. troops and personnel are authorized to conduct activities that promote
the goal of maintaining and developing their defense capability.
Petitioners contest251 the assertion that the provisions of EDCA merely implement the MDT.
According to them, the treaty does not specifically authorize the entry of U.S. troops in the
country in order to maintain and develop the individual and collective capacities of both the
Philippines and the U.S. to resist an armed attack. They emphasize that the treaty was
concluded at a time when there was as yet no specific constitutional prohibition on the
presence of foreign military forces in the country.
Petitioners also challenge the argument that EDCA simply implements the VFA. They
assert that the agreement covers only short-term or temporary visits of U.S. troops "from
time to time" for the specific purpose of combined military exercises with their Filipino
counterparts. They stress that, in contrast, U.S. troops are allowed under EDCA to perform
activities beyond combined military exercises, such as those enumerated in Articles 111(1)
and IV(4) thereof. Furthermore, there is some degree of permanence in the presence of
U.S. troops in the country, since the effectivity of EDCA is continuous until terminated. They
proceed to argue that while troops have a "rotational" presence, this scheme in fact fosters
their permanent presence.
a. Admission of U.S. military and civilian personnel into Philippine territory is already
allowed under the VFA
1. The term "military personnel" refers to military members of
the United States Army, Navy, Marine Corps, Air Force, and Coast
Guard.
2. The term "civilian personnel" refers to individuals who are neither
nationals of nor ordinarily resident in the Philippines and who
are employed by the United States armed forces or who are
accompanying the United States armed forces, such as employees of
the American Red Cross and the United Services Organization.258

We shall first deal with the recognition under EDCA of the presence in the country of three Article II of EDCA must then be read with Article III of the VFA, which provides for the entry
distinct classes of individuals who will be conducting different types of activities within the accommodations to be accorded to U.S. military and civilian personnel:
Agreed Locations: (1) U.S. military personnel; (2) U.S. civilian personnel; and (3) U.S.
contractors. The agreement refers to them as follows:
1. The Government of the Philippines shall facilitate the admission of United
States personnel and their departure from the Philippines in connection with
"United States personnel" means United States military and civilian personnel temporarily activities covered by this agreement.
in the territory of the Philippines in connection with activities approved by the Philippines, as
those terms are defined in the VFA.252
2. United States military personnel shall be exempt from passport and visa
regulations upon enteringand departing the Philippines.
"United States forces" means the entity comprising United States personnel and
all property, equipment, and materiel of the United States Armed Forces present in the
3. The following documents only, which shall be required in respect of United
territory of the Philippines.253
States military personnel who enter the Philippines; xx xx.

"United States contractors" means companies and firms, and their employees, under
4. United States civilian personnel shall be exempt from visa requirements but
contract or subcontract to or on behalf of the United States Department of Defense. United
shall present, upon demand, valid passports upon entry and departure of the
States contractors are not included as part of the definition of United States personnel in
Philippines. (Emphases Supplied)
this Agreement, including within the context of the VFA. 254

By virtue of Articles I and III of the VFA, the Philippines already allows U.S. military and
United States forces may contract for any materiel, supplies, equipment, and
civilian personnel to be "temporarily in the Philippines," so long as their presence is "in
services (including construction) to be furnished or undertaken in the territory of the
connection with activities approved by the Philippine Government." The Philippines,
Philippines without restriction as to choice of contractor, supplier, or person who
through Article III, even guarantees that it shall facilitate the admission of U.S. personnel
provides such materiel, supplies, equipment, or services. Such contracts shall be solicited,
into the country and grant exemptions from passport and visa regulations. The VFA does
awarded, and administered in accordance with the laws and regulations of the United
not even limit their temporary presence to specific locations.
States.255 (Emphases Supplied)

Based on the above provisions, the admission and presence of U.S. military and civilian
A thorough evaluation of how EDCA is phrased clarities that the agreement does not deal
personnel in Philippine territory are already allowed under the VFA, the treaty supposedly
with the entry into the country of U.S. personnel and contractors per se. While Articles
being implemented by EDCA. What EDCA has effectively done, in fact, is merely provide
I(l)(b)256 and II(4)257 speak of "the right to access and use" the Agreed Locations, their
the mechanism to identify the locations in which U.S. personnel may perform allowed
wordings indicate the presumption that these groups have already been allowed entry into
activities pursuant to the VFA. As the implementing agreement, it regulates and limits the
Philippine territory, for which, unlike the VFA, EDCA has no specific provision. Instead,
presence of U.S. personnel in the country.
Article II of the latter simply alludes to the VFA in describing U.S. personnel, a term defined
under Article I of the treaty as follows:
b. EDCA does not provide the legal basis for admission of U.S. contractors into Philippine
territory; their entry must be sourced from extraneous Philippine statutes and regulations for
As used in this Agreement, "United States personnel" means United States military and
the admission of alien employees or business persons.
civilian personnel temporarily in the Philippines in connection with activities approved by the
Philippine Government. Within this definition:
Of the three aforementioned classes of individuals who will be conducting certain activities Article III
within the Agreed Locations, we note that only U.S. contractors are not explicitly mentioned
in the VFA. This does not mean, though, that the recognition of their presence under EDCA
The Parties, through their Foreign Ministers or their deputies, will consult together from time
is ipso facto an amendment of the treaty, and that there must be Senate concurrence
to time regarding the implementation of this Treaty and whenever in the opinion of either of
before they are allowed to enter the country.
them the territorial integrity, political independence or security of either of the Parties is
threatened by external armed attack in the Pacific.
Nowhere in EDCA are U.S. contractors guaranteed immediate admission into the
Philippines. Articles III and IV, in fact, merely grant them the right of access to, and the
VISITING FORCES AGREEMENT
authority to conduct certain activities within the Agreed Locations. Since Article II(3) of
EDCA specifically leaves out U.S. contractors from the coverage of the VFA, they shall not
be granted the same entry accommodations and privileges as those enjoyed by U.S. Preamble
military and civilian personnel under the VFA.
xxx
Consequently, it is neither mandatory nor obligatory on the part of the Philippines to admit
U.S. contractors into the country.259 We emphasize that the admission of aliens into
Philippine territory is "a matter of pure permission and simple tolerance which creates no Reaffirming their obligations under the Mutual Defense Treaty of August 30, 1951;
obligation on the part of the government to permit them to stay." 260 Unlike U.S. personnel
who are accorded entry accommodations, U.S. contractors are subject to Philippine Noting that from time to time elements of the United States armed forces may visit the
immigration laws.261The latter must comply with our visa and passport regulations262 and Republic of the Philippines;
prove that they are not subject to exclusion under any provision of Philippine immigration
laws.263 The President may also deny them entry pursuant to his absolute and unqualified
power to prohibit or prevent the admission of aliens whose presence in the country would Considering that cooperation between the United States and the Republic of the
be inimical to public interest.264 Philippines promotes their common security interests;

In the same vein, the President may exercise the plenary power to expel or deport U.S.
contractors265 as may be necessitated by national security, public safety, public health,
public morals, and national interest.266 They may also be deported if they are found to be
illegal or undesirable aliens pursuant to the Philippine Immigration Act 267 and the Data
Privacy Act.268 In contrast, Article 111(5) of the VFA requires a request for removal from the
Philippine government before a member of the U.S. personnel may be "dispos[ed] xx x
outside of the Philippines."
xxx
Article I - Definitions
As used in this Agreement, "United States personnel" means United States military and
civilian personnel temporarily in the Philippines in connection with activities approved by the
Philippine Government. Within this definition: xx x

c. Authorized activities of U.S. military and civilian personnel within Philippine territory are in
furtherance of the MDT and the VFA Article II - Respect for Law

We begin our analysis by quoting the relevant sections of the MDT and the VFA that pertain
to the activities in which U.S. military and civilian personnel may engage:
MUTUAL DEFENSE TREATY
Article II
In order more effectively to achieve the objective of this Treaty, the Parties separately
and jointly byself-help and mutual aid will maintain and develop their individual and
collective capacity to resist armed attack.
It is the duty of United States personnel to respect the laws of the Republic of the
Philippines and to abstain from any activity inconsistent with the spirit of this agreement,
and, in particular, from any political activity in the Philippines. The Government of the
United States shall take all measures within its authority to ensure that this is done.
Article VII - Importation and Exportation
1. United States Government equipment, materials, supplies, and other property imported
into or acquired in the Philippines by or on behalf of the United States armed forces in
connection with activities to which this agreement applies, shall be free of all Philippine
duties, taxes and other similar charges. Title to such property shall remain with the United
States, which may remove such property from the Philippines at any time, free from export capacity to resist an actual armed attack and to test and validate the defense plan of the
duties, taxes, and other similar charges. x x x. Philippines. It is likewise reasonable to imagine that part of the training would involve an
analysis of the effect of the weapons that may be used and how to be prepared for the
eventuality. This Court recognizes that all of this may require training in the area where an
Article VIII - Movement of Vessels and Aircraft
armed attack might be directed at the Philippine territory.

1. Aircraft operated by or for the United States armed forces may enter the Philippines upon
The provisions of the MDT must then be read in conjunction with those of the VFA.
approval of the Government of the Philippines in accordance with procedures stipulated
in implementing arrangements.
Article I of the VFA indicates that the presence of U.S. military and civilian personnel in the
Philippines is "in connection with activities approved by the Philippine Government." While
2. Vessels operated by or for the United States armed forces may enter the
the treaty does not expressly enumerate or detail the nature of activities of U.S. troops in
Philippines upon approval of the Government of the Philippines. The movement of vessels
the country, its Preamble makes explicit references to the reaffirmation of the obligations of
shall be in accordance with international custom and practice governing such vessels,
both countries under the MDT. These obligations include the strengthening of international
and such agreed implementing arrangements as necessary. x x x (Emphases Supplied)
and regional security in the Pacific area and the promotion of common security interests.

Manifest in these provisions is the abundance of references to the creation of further

The Court has already settled in Lim v. Executive Secretary that the phrase "activities
"implementing arrangements" including the identification of "activities [to be] approved by
approved by the Philippine Government" under Article I of the VFA was intended to be
the Philippine Government." To determine the parameters of these implementing
ambiguous in order to afford the parties flexibility to adjust the details of the purpose of the
arrangements and activities, we referred to the content, purpose, and framework of the
visit of U.S. personnel.276 In ruling that the Terms of Reference for the Balikatan Exercises
MDT and the VFA.
in 2002 fell within the context of the treaty, this Court explained:

By its very language, the MDT contemplates a situation in which both countries shall
After studied reflection, it appeared farfetched that the ambiguity surrounding the meaning
engage in joint activities, so that they can maintain and develop their defense capabilities.
of the word "activities" arose from accident. In our view, it was deliberately made that way
The wording itself evidently invites a reasonable construction that the joint activities shall
to give both parties a certain leeway in negotiation. In this manner, visiting US forces may
involve joint military trainings, maneuvers, and exercises. Both the interpretation269 and the
sojourn in Philippine territory for purposes other than military. As conceived, the joint
subsequent practice270 of the parties show that the MDT independently allows joint military
exercises may include training on new techniques of patrol and surveillance to protect the
exercises in the country. Lim v. Executive Secretary271 and Nicolas v. Romulo272 recognized
nation's marine resources, sea search-and-rescue operations to assist vessels in distress,
that Balikatan exercises, which are activities that seek to enhance and develop the strategic
disaster relief operations, civic action projects such as the building of school houses,
and technological capabilities of the parties to resist an armed attack, "fall squarely under
medical and humanitarian missions, and the like.
the provisions of the RP-US MDT."273 In Lim, the Court especially noted that the Philippines
and the U.S. continued to conduct joint military exercises even after the expiration of the
MBA and even before the conclusion of the VFA.274 These activities presumably related to Under these auspices, the VFA gives legitimacy to the current Balikatan exercises. It is only
the Status of Forces Agreement, in which the parties agreed on the status to be accorded logical to assume that "Balikatan 02-1," a "mutual anti-terrorism advising, assisting and
to U.S. military and civilian personnel while conducting activities in the Philippines in training exercise," falls under the umbrella of sanctioned or allowable activities in the
relation to the MDT.275 context of the agreement. Both the history and intent of the Mutual Defense Treaty and the
VFA support the conclusion that combat-related activities - as opposed to combat itself-
such as the one subject of the instant petition, are indeed authorized. (Emphases Supplied)
Further, it can be logically inferred from Article V of the MDT that these joint activities may
be conducted on Philippine or on U.S. soil. The article expressly provides that the
term armed attack includes "an armed attack on the metropolitan territory of either of the The joint report of the Senate committees on foreign relations and on national defense and
Parties, or on the island territories under its jurisdiction in the Pacific or on its armed forces, security further explains the wide range and variety of activities contemplated in the VFA,
public vessels or aircraft in the Pacific." Surely, in maintaining and developing our defense and how these activities shall be identified:277
capabilities, an assessment or training will need to be performed, separately and jointly by
self-help and mutual aid, in the territories of the contracting parties. It is reasonable to
These joint exercises envisioned in the VFA are not limited to combat-related activities;
conclude that the assessment of defense capabilities would entail understanding the
they have a wide range and variety. They include exercises that will reinforce the AFP's
terrain, wind flow patterns, and other environmental factors unique to the Philippines.
ability to acquire new techniques of patrol and surveillance to protect the country's maritime
resources; sea-search and rescue operations to assist ships in distress; and disaster-relief
It would also be reasonable to conclude that a simulation of how to respond to attacks in operations to aid the civilian victims of natural calamities, such as earthquakes, typhoons
vulnerable areas would be part of the training of the parties to maintain and develop their and tidal waves.
xxxx
Joint activities under the VFA will include combat maneuvers; training in aircraft
maintenance and equipment repair; civic-action projects; and consultations and meetings of
the Philippine-U.S. Mutual Defense Board. It is at the level of the Mutual Defense Board-
which is headed jointly by the Chief of Staff of the AFP and the Commander in Chief of the
U.S. Pacific Command-that the VFA exercises are planned. Final approval of any
activity involving U.S. forces is, however, invariably given by the Philippine Government.
xxxx
Siazon clarified that it is not the VFA by itself that determines what activities will be
conductedbetween the armed forces of the U.S. and the Philippines. The VFA regulates
and provides the legal framework for the presence, conduct and legal status of U.S.
personnel while they are in the country for visits, joint exercises and other related activities.
(Emphases Supplied)
What can be gleaned from the provisions of the VFA, the joint report of the Senate
committees on foreign relations and on national defense and security, and the ruling of this
Court in Lim is that the "activities" referred to in the treaty are meant to be specified and
identified infurther agreements. EDCA is one such agreement.
EDCA seeks to be an instrument that enumerates the Philippine-approved activities of U.S.
personnel referred to in the VFA. EDCA allows U.S. military and civilian personnel to
perform "activities approved by the Philippines, as those terms are defined in the
VFA"278 and clarifies that these activities include those conducted within the Agreed
Locations:
1. Security cooperation exercises; joint and combined training activities; humanitarian
assistance and disaster relief activities; and such other activities as may be agreed upon by
the Parties279
2. Training; transit; support and related activities; refueling of aircraft; bunkering of vessels;
temporary maintenance of vehicles, vessels, and aircraft; temporary accommodation of
personnel; communications; prepositioning of equipment, supplies, and materiel;
deployment of forces and materiel; and such other activities as the Parties may agree280
3. Exercise of operational control over the Agreed Locations for construction activities and
other types of activity, including alterations and improvements thereof281
4. Exercise of all rights and authorities within the Agreed Locations that are necessary for
their operational control or defense, including the adoption of apfropriate measures to
protect U.S. forces and contractors282
5. Use of water, electricity, and other public utilities283
6. Operation of their own telecommunication systems, including the utilization of such
means and services as are required to ensure the full ability to operate telecommunication
systems, as well as the use of the necessary radio spectrum allocated for this purpose 284
According to Article I of EDCA, one of the purposes of these activities is to maintain and
develop, jointly and by mutual aid, the individual and collective capacities of both countries
to resist an armed attack. It further states that the activities are in furtherance of the MDT
and within the context of the VFA.
We note that these planned activities are very similar to those under the Terms of
Reference285 mentioned in Lim. Both EDCA and the Terms of Reference authorize the U.S.
to perform the following: (a) participate in training exercises; (b) retain command over their
forces; (c) establish temporary structures in the country; (d) share in the use of their
respective resources, equipment and other assets; and (e) exercise their right to self-
defense. We quote the relevant portion of the Terms and Conditions as follows: 286
I. POLICY LEVEL
xxxx
No permanent US basing and support facilities shall be established. Temporary
structures such as those for troop billeting, classroom instruction and messing may be set
up for use by RP and US Forces during the Exercise.
The Exercise shall be implemented jointly by RP and US Exercise Co-Directors under the
authority of the Chief of Staff, AFP. In no instance will US Forces operate independently
during field training exercises (FTX). AFP and US Unit Commanders will retain command
over their respective forces under the overall authority of the Exercise Co-Directors. RP and
US participants shall comply with operational instructions of the AFP during the FTX.
The exercise shall be conducted and completed within a period of not more than six
months, with the projected participation of 660 US personnel and 3,800 RP Forces. The
Chief of Staff, AFP shall direct the Exercise Co-Directors to wind up and terminate the
Exercise and other activities within the six month Exercise period.
The Exercise is a mutual counter-terrorism advising, assisting and training Exercise relative
to Philippine efforts against the ASG, and will be conducted on the Island of Basilan.
Further advising, assisting and training exercises shall be conducted in Malagutay and the
Zamboanga area. Related activities in Cebu will be for support of the Exercise.
xx xx.
US exercise participants shall not engage in combat, without prejudice to their right of self-
defense.
These terms of Reference are for purposes of this Exercise only and do not create
additional legal obligations between the US Government and the Republic of the
Philippines.
II. EXERCISE LEVEL
1. TRAINING
a. The Exercise shall involve the conduct of mutual military assisting,
advising and trainingof RP and US Forces with the primary objective
of enhancing the operational capabilities of both forces to combat
terrorism.
b. At no time shall US Forces operate independently within RP
territory.
c. Flight plans of all aircraft involved in the exercise will comply with the
local air traffic regulations.
2. ADMINISTRATION & LOGISTICS
xxxx
a. RP and US participating forces may share, in accordance with their respective laws and
regulations, in the use of their resources, equipment and other assets. They will use their
respective logistics channels. x x x. (Emphases Supplied)
After a thorough examination of the content, purpose, and framework of the MDT and the
VFA, we find that EDCA has remained within the parameters set in these two treaties. Just
like the Terms of Reference mentioned in Lim, mere adjustments in detail to implement the
MDT and the VFA can be in the form of executive agreements.
Petitioners assert287 that the duration of the activities mentioned in EDCA is no longer
consistent with the temporary nature of the visits as contemplated in the VFA. They point
out that Article XII(4) of EDCA has an initial term of 10 years, a term automatically renewed
unless the Philippines or the U.S. terminates the agreement. According to petitioners, such
length of time already has a badge of permanency.
In connection with this, Justice Teresita J. Leonardo-De Castro likewise argues in her
Concurring and Dissenting Opinion that the VFA contemplated mere temporary visits from
U.S. forces, whereas EDCA allows an unlimited period for U.S. forces to stay in the
Philippines.288
However, the provisions of EDCA directly contradict this argument by limiting itself to 10
years of effectivity. Although this term is automatically renewed, the process for terminating
the agreement is unilateral and the right to do so automatically accrues at the end of the 10
year period. Clearly, this method does not create a permanent obligation.
Drawing on the reasoning in Lim, we also believe that it could not have been by chance that
the VFA does not include a maximum time limit with respect to the presence of U.S.
personnel in the country. We construe this lack of specificity as a deliberate effort on the
part of the Philippine and the U.S. governments to leave out this aspect and reserve it for
the "adjustment in detail" stage of the implementation of the treaty. We interpret the
subsequent, unconditional concurrence of the Senate in the entire text of the VFA as an
implicit grant to the President of a margin of appreciation in determining the duration of the
"temporary" presence of U.S. personnel in the country.
Justice Brion's dissent argues that the presence of U.S. forces under EDCA is "more
permanent" in nature.289However, this argument has not taken root by virtue of a simple
glance at its provisions on the effectivity period. EDCA does not grant permanent bases,
but rather temporary rotational access to facilities for efficiency. As Professor Aileen S.P.
Baviera notes:
The new EDCA would grant American troops, ships and planes rotational access to
facilities of the Armed Forces of the Philippines but not permanent bases which are
prohibited under the Philippine Constitution - with the result of reducing response time
should an external threat from a common adversary crystallize.290
EDCA is far from being permanent in nature compared to the practice of states as shown in
other defense cooperation agreements. For example, Article XIV(l) of the U.S.-Romania
defense agreement provides the following:
This Agreement is concluded for an indefinite period and shall enter into force in
accordance with the internal laws of each Party x x x. (emphasis supplied)
Likewise, Article 36(2) of the US-Poland Status of Forces Agreement reads:
This Agreement has been concluded for an indefinite period of time. It may be terminated
by written notification by either Party and in that event it terminates 2 years after the receipt
of the notification. (emphasis supplied)
Section VIII of US.-Denmark Mutual Support Agreement similarly provides:
8.1 This Agreement, which consists of a Preamble, SECTIONs I-VIII, and Annexes A and
B, shall become effective on the date of the last signature affixed below and shall remain in
force until terminated by the Parties, provided that it may be terminated by either Party
upon 180 days written notice of its intention to do so to the other Party. (emphasis supplied)
On the other hand, Article XXI(3) of the US.-Australia Force Posture Agreement provides a
longer initial term:
3. This Agreement shall have an initial term of 25 years and thereafter shall continue in
force, but may be terminated by either Party at any time upon one year's written notice to
the other Party through diplomatic channels. (emphasis supplied)
The phrasing in EDCA is similar to that in the U.S.-Australia treaty but with a term less than
half of that is provided in the latter agreement. This means that EDCA merely follows the
practice of other states in not specifying a non-extendible maximum term. This practice,
however, does not automatically grant a badge of permanency to its terms. Article XII(4) of
EDCA provides very clearly, in fact, that its effectivity is for an initial term of 10 years, which
is far shorter than the terms of effectivity between the U.S. and other states. It is simply
illogical to conclude that the initial, extendible term of 10 years somehow gives EDCA
provisions a permanent character.
The reasoning behind this interpretation is rooted in the constitutional role of the President
who, as Commander-in-Chief of our armed forces, is the principal strategist of the nation
and, as such, duty-bound to defend our national sovereignty and territorial integrity; 291 who,
as chief architect of our foreign relations, is the head policymaker tasked to assess, ensure,
and protect our national security and interests;292 who holds the most comprehensive and
most confidential information about foreign countries293 that may affect how we conduct our
external affairs; and who has unrestricted access to highly classified military intelligence
data294 that may threaten the life of the nation. Thus, if after a geopolitical prognosis of
situations affecting the country, a belief is engendered that a much longer period of military
training is needed, the President must be given ample discretion to adopt necessary
measures including the flexibility to set an extended timetable.
Due to the sensitivity and often strict confidentiality of these concerns, we acknowledge that
the President may not always be able to candidly and openly discuss the complete situation
being faced by the nation. The Chief Executive's hands must not be unduly tied, especially
if the situation calls for crafting programs and setting timelines for approved activities.
These activities may be necessary for maintaining and developing our capacity to resist an
armed attack, ensuring our national sovereignty and territorial integrity, and securing our
national interests. If the Senate decides that the President is in the best position to define in
operational terms the meaning of temporary in relation to the visits, considered individually
or in their totality, the Court must respect that policy decision. If the Senate feels that there
is no need to set a time limit to these visits, neither should we.
Evidently, the fact that the VFA does not provide specificity in regard to the extent of the
"temporary" nature of the visits of U.S. personnel does not suggest that the duration to
which the President may agree is unlimited. Instead, the boundaries of the meaning of the
term temporary in Article I of the treaty must be measured depending on the purpose of
each visit or activity.295 That purpose must be analyzed on a case-by-case basis depending
on the factual circumstances surrounding the conclusion of the implementing agreement.
While the validity of the President's actions will be judged under less stringent standards,
the power of this Court to determine whether there was grave abuse of discretion remains
unimpaired.
d. Authorized activities performed by US. contractors within Philippine territory - who were
legitimately permitted to enter the country independent of EDCA - are subject to relevant
Philippine statutes and regulations and must be consistent with the MDT and the VFA
Petitioners also raise296 concerns about the U.S. government's purported practice of hiring
private security contractors in other countries. They claim that these contractors - one of
which has already been operating in Mindanao since 2004 - have been implicated in
incidents or scandals in other parts of the globe involving rendition, torture and other human
rights violations. They also assert that these contractors employ paramilitary forces in other
countries where they are operating.
Under Articles III and IV of EDCA, U.S. contractors are authorized to perform only the
following activities:
1. Training; transit; support and related activities; refueling of aircraft; bunkering
of vessels; temporary maintenance of vehicles, vessels, and aircraft; temporary
accommodation of personnel; communications; prepositioning of equipment,
supplies, and materiel; deployment of forces and materiel; and such other
activities as the Parties may agree297
2. Prepositioning and storage of defense equipment, supplies, and materiel,
including delivery, management, inspection, use, maintenance, and removal of
such equipment, supplies and materiel298
3. Carrying out of matters in accordance with, and to the extent permissible
under, U.S. laws, regulations, and policies299
EDCA requires that all activities within Philippine territory be in accordance with Philippine
law. This means that certain privileges denied to aliens are likewise denied to foreign
military contractors. Relevantly, providing security300and carrying, owning, and possessing
firearms301 are illegal for foreign civilians.
The laws in place already address issues regarding the regulation of contractors. In the
2015 Foreign Investment Negative list,302 the Executive Department has already identified
corporations that have equity restrictions in Philippine jurisdiction. Of note is No. 5 on the
list - private security agencies that cannot have any foreign equity by virtue of Section 4 of
Republic Act No. 5487;303 and No. 15, which regulates contracts for the construction of
defense-related structures based on Commonwealth Act No. 541.
Hence, any other entity brought into the Philippines by virtue of EDCA must subscribe to
corporate and civil requirements imposed by the law, depending on the entity's corporate
structure and the nature of its business.
That Philippine laws extraneous to EDCA shall govern the regulation of the activities of U.S.
contractors has been clear even to some of the present members of the Senate.
For instance, in 2012, a U.S. Navy contractor, the Glenn Marine, was accused of spilling
fuel in the waters off Manila Bay.304 The Senate Committee on Foreign Relations and the
Senate Committee on Environment and Natural Resources chairperson claimed
environmental and procedural violations by the contractor.305 The U.S. Navy investigated
the contractor and promised stricter guidelines to be imposed upon its contractors. 306 The
statement attributed to Commander Ron Steiner of the public affairs office of the U.S.
Navy's 7th Fleet - that U.S. Navy contractors are bound by Philippine laws - is of particular
relevance. The statement acknowledges not just the presence of the contractors, but also
the U.S. position that these contractors are bound by the local laws of their host state. This
stance was echoed by other U.S. Navy representatives. 307
exclusivity in the use of the Agreed Locations by U.S. forces. First, Article V(2) of EDCA
alludes to a "return" of these areas once they are no longer needed by U.S. forces,
indicating that there would be some transfer of use. Second, Article IV(4) ofEDCA talks
about American forces' unimpeded access to the Agreed Locations for all matters relating
to the prepositioning and storage of U.S. military equipment, supplies, and materiel. Third,
Article VII of EDCA authorizes U.S. forces to use public utilities and to operate their own
telecommunications system.
a. Preliminary point on badges of exclusivity

As a preliminary observation, petitioners have cherry-picked provisions of EDCA by

This incident simply shows that the Senate was well aware of the presence of U.S.
presenting so-called "badges of exclusivity," despite the presence of contrary provisions
contractors for the purpose of fulfilling the terms of the VFA. That they are bound by
within the text of the agreement itself.
Philippine law is clear to all, even to the U.S.

First, they clarify the word "return" in Article V(2) of EDCA. However, the use of the word
As applied to EDCA, even when U.S. contractors are granted access to the Agreed
"return" is within the context of a lengthy provision. The provision as a whole reads as
Locations, all their activities must be consistent with Philippine laws and regulations and
follows:
pursuant to the MDT and the VFA.

The United States shall return to the Philippines any Agreed Locations, or any portion
While we recognize the concerns of petitioners, they do not give the Court enough
thereof, including non-relocatable structures and assemblies constructed, modified, or
justification to strike down EDCA. In Lim v. Executive Secretary, we have already explained
improved by the United States, once no longer required by United States forces for
that we cannot take judicial notice of claims aired in news reports, "not because of any
activities under this Agreement. The Parties or the Designated Authorities shall consult
issue as to their truth, accuracy, or impartiality, but for the simple reason that facts must be
regarding the terms of return of any Agreed Locations, including possible compensation for
established in accordance with the rules of evidence."308 What is more, we cannot move
improvements or construction.
one step ahead and speculate that the alleged illegal activities of these contractors in other
countries would take place in the Philippines with certainty. As can be seen from the above
discussion, making sure that U.S. contractors comply with Philippine laws is a function of The context of use is "required by United States forces for activities under this Agreement."
law enforcement. EDCA does not stand in the way of law enforcement. Therefore, the return of an Agreed Location would be within the parameters of an activity
that the Mutual Defense Board (MDB) and the Security Engagement Board (SEB) would
authorize. Thus, possession by the U.S. prior to its return of the Agreed Location would be
Nevertheless, we emphasize that U.S. contractors are explicitly excluded from the
based on the authority given to it by a joint body co-chaired by the "AFP Chief of Staff and
coverage of the VFA. As visiting aliens, their entry, presence, and activities are subject to
Commander, U.S. PACOM with representatives from the Philippines' Department of
all laws and treaties applicable within the Philippine territory. They may be refused entry or
National Defense and Department of Foreign Affairs sitting as members." 313 The terms shall
expelled from the country if they engage in illegal or undesirable activities. There is nothing
be negotiated by both the Philippines and the U.S., or through their Designated Authorities.
that prevents them from being detained in the country or being subject to the jurisdiction of
This provision, seen as a whole, contradicts petitioners' interpretation of the return as a
our courts. Our penal laws,309 labor laws,310 and immigrations laws311 apply to them and
"badge of exclusivity." In fact, it shows the cooperation and partnership aspect of EDCA in
therefore limit their activities here. Until and unless there is another law or treaty that
full bloom.
specifically deals with their entry and activities, their presence in the country is subject to
unqualified Philippine jurisdiction.
Second, the term "unimpeded access" must likewise be viewed from a contextual
perspective. Article IV(4) states that U.S. forces and U.S. contractors shall have
EDCA does not allow the presence of U.S.-owned or -controlled military facilities and bases
"unimpeded access to Agreed Locations for all matters relating to the prepositioning and
in the Philippines
storage of defense equipment, supplies, and materiel, including delivery, management,
inspection, use, maintenance, and removal of such equipment, supplies and materiel."
Petitioners Saguisag et al. claim that EDCA permits the establishment of U.S. military
bases through the "euphemistically" termed "Agreed Locations. "312 Alluding to the definition
At the beginning of Article IV, EDCA states that the Philippines gives the U.S. the authority
of this term in Article II(4) of EDCA, they point out that these locations are actually military
to bring in these equipment, supplies, and materiel through the MDB and SEB security
bases, as the definition refers to facilities and areas to which U.S. military forces have
mechanism. These items are owned by the U.S., 314 are exclusively for the use of the
access for a variety of purposes. Petitioners claim that there are several badges of
U.S.315 and, after going through the joint consent mechanisms of the MDB and the SEB, are
within the control of the U.S.316 More importantly, before these items are considered
prepositioned, they must have gone through the process of prior authorization by the MDB
and the SEB and given proper notification to the AFP.317
Therefore, this "unimpeded access" to the Agreed Locations is a necessary adjunct to the
ownership, use, and control of the U.S. over its own equipment, supplies, and materiel and
must have first been allowed by the joint mechanisms in play between the two states since
the time of the MDT and the VFA. It is not the use of the Agreed Locations that is
exclusive per se; it is mere access to items in order to exercise the rights of ownership
granted by virtue of the Philippine Civil Code.318
The parallelism, however, ends when the situation involves facilities that can be considered
immovable. Under the MBA, the U.S. retains ownership if it paid for the facility. 325 Under
EDCA, an immovable is owned by the Philippines, even if built completely on the back of
U.S. funding.326 This is consistent with the constitutional prohibition on foreign land
ownership.327
Despite the apparent similarity, the ownership of property is but a part of a larger whole that
must be considered before the constitutional restriction is violated. Thus, petitioners' points
on operational control will be given more attention in the discussion below. The arguments
on policy are, however, outside the scope of judicial review and will not be discussed

As for the view that EDCA authorizes U.S. forces to use public utilities and to operate their Moreover, a direct comparison of the MBA and EDCA will result in several important
own telecommunications system, it will be met and answered in part D, infra. distinctions that would allay suspicion that EDCA is but a disguised version of the MBA.

Petitioners also point out319 that EDCA is strongly reminiscent of and in fact bears a one-to- b. There are substantial matters that the US. cannot do under EDCA, but which it was
one correspondence with the provisions of the 1947 MBA. They assert that both authorized to do under the 1947 MBA
agreements (a) allow similar activities within the area; (b) provide for the same "species of
ownership" over facilities; and (c) grant operational control over the entire area. Finally,
The Philippine experience with U.S. military bases under the 1947 MBA is simply not
they argue320 that EDCA is in fact an implementation of the new defense policy of the U.S.
possible under EDCA for a number of important reasons.
According to them, this policy was not what was originally intended either by the MDT or by
the VFA.
First, in the 1947 MBA, the U.S. retained all rights of jurisdiction in and over Philippine
territory occupied by American bases. In contrast, the U.S. under EDCA does not enjoy any
On these points, the Court is not persuaded.
such right over any part of the Philippines in which its forces or equipment may be found.
Below is a comparative table between the old treaty and EDCA:
The similar activities cited by petitioners321 simply show that under the MBA, the U.S. had
the right to construct, operate, maintain, utilize, occupy, garrison, and control the bases.
The so-called parallel provisions of EDCA allow only operational control over the Agreed 1947 MBA/ 1946 Treaty EDCA
Locations specifically for construction activities. They do not allow the overarching power to of General Relations
operate, maintain, utilize, occupy, garrison, and control a base with full discretion. EDCA in
fact limits the rights of the U.S. in respect of every activity, including construction, by giving 1947 MBA, Art. I(1): EDCA, preamble:
the MDB and the SEB the power to determine the details of all activities such as, but not
limited to, operation, maintenance, utility, occupancy, garrisoning, and control.322
The Government of the Affirming that the Parties
Republic of share an understanding
The "species of ownership" on the other hand, is distinguished by the nature of the the Philippines (hereinaf for the United States not
property. For immovable property constructed or developed by the U.S., EDCA expresses ter referred to as the to establish a permanent
that ownership will automatically be vested to the Philippines. 323 On the other hand, for Philippines) grants military presence or
movable properties brought into the Philippines by the U.S., EDCA provides that ownership to the Government of base in the territory of
is retained by the latter. In contrast, the MBA dictates that the U.S. retains ownership over the United States of the Philippines;
immovable and movable properties. America (hereinafter
referred to as the United
xxxx
States) the right to retain
To our mind, both EDCA and the MBA simply incorporate what is already the law of the
the use of the bases in
land in the Philippines. The Civil Code's provisions on ownership, as applied, grant the
the Philippines listed in Recognizing that
owner of a movable property full rights over that property, even if located in another
Annex A attached all United States
person's property.324
hereto. access to and use of
facilities and areas will
be at the invitation of the
1947 MBA, Art. XVII(2):
All buildings and
structures which
are erected by the
United States in the
bases shall be
the property of the
United States and may
be removed by it before
the expiration of this
Agreement or the earlier
relinquishment of the
base on which the
structures are situated.
There shall be no
obligation on the part of
the Philippines or of the
United States to rebuild
or repair any destruction
or damage inflicted from
any cause whatsoever
on any of the said
buildings or structures
owned or used by the
United States in the
bases. x x x x.
1946 Treaty of Gen.
Relations, Art. I:
The United States of
America agrees to
withdraw and surrender,
and does hereby
withdraw and
surrender, all rights of
possession, supervision,
jurisdiction, control or
sovereignty existing and
exercised by the United
States of America in and
over the territory and the
people of the Philippine
Islands, except the use
of such bases,
necessary
appurtenances to such
Philippines and with full bases, and the rights improved by United
respect for the Philippine incident thereto, as the States forces, remain
Constitution and United States of the property of the
Philippine laws; America, by agreement Philippines.Permanent
with the Republic of the buildings constructed by
Philippines may deem United States forces
xxxx
necessary to retain for become the property of
the mutual protection of the Philippines, once
EDCA, Art. II(4): the Republic of the constructed, but shall be
Philippines and of the used by United States
United States of forces until no longer
"Agreed America. x x x. required by United
Locations" means faciliti
States forces.
es and areas that
are provided by the
Government of the
Philippines through the
AFP and that United
States forces, United Second, in the bases agreement, the U.S. and the Philippines were visibly not on equal
States contractors, and footing when it came to deciding whether to expand or to increase the number of bases, as
others as mutually the Philippines may be compelled to negotiate with the U.S. the moment the latter
agreed, shall have the requested an expansion of the existing bases or to acquire additional bases. In EDCA, U.S.
right to access and use access is purely at the invitation of the Philippines.
pursuant to this
Agreement. Such
Agreed Locations may 1947 MBA/ 1946 Treaty of EDCA
be listed in an annex to General Relations
be appended to this
Agreement, and may be 1947 MBA, Art.I(3): EDCA, preamble:
further described in
implementing
The Philippines agree to enter Recognizing that all United States
arrangements.
into negotiations with the access to and use of facilities and
United States at the latter's areas will be at the invitation of the
EDCA, Art. V: request, to permit the United Philippines and with full respect for
States to expand such bases, the Philippine Constitution and
1. to exchange such bases for Philippine laws;
The Philippines shall ret other bases, to acquire
ain ownership of and additional bases, or relinquish
xxxx
title to Agreed Locations. rights to bases, as any of such
exigencies may be required by
military necessity. EDCA. Art. II(4):
xxxx
1946 Treaty of Gen. Relations, "Agreed Locations" means facilities
4. All buildings, non- Art. I: and areas that are provided by the
relocatable structures, Government of the
and assemblies affixed Philippines through the AFP and
to the land in the Agreed The United States of
that United States forces, United
Locations, including America agrees to
States contractors, and others as
ones altered or withdraw and surrender, and
 standard used in determining the extent of its control was military necessity. On the other
does hereby withdraw and mutually agreed, shall have the hand, there is no such grant of power or authority under EDCA. It merely allows the U.S. to
surrender, all rights of right to access and use pursuant to exercise operational control over the construction of Philippine-owned structures and
possession, supervision, this Agreement. Such Agreed facilities:
jurisdiction, control or Locations may be listed in an
sovereignty existing and annex to be appended to this
exercised by the United States Agreement, and may be further
1947 MBA EDCA
of America in and over the described in implementing
territory and the people of the arrangements.
1947 MBA, Art.I(2): EDCA, Art. III(4):
Philippine Islands, except the
use of such bases, necessary
appurtenances to such bases, The Philippines agrees The Philippines hereby grants to
and the rights incident to permit the United States, the United States, through bilateral
thereto, as the United States of upon notice to the Philippines, security mechanisms, such as the
America, by agreement with the to use such of those MDB and SEB, operational
Republic of the Philippines may bases listed in Annex B as the control of Agreed
deem necessary to retain for United States determines to be Locations for construction
the mutual protection of the required by military necessity. activities and authority to undertake
Republic of the Philippines and such activities on, and make
of the United States of alterations and improvements to,
1947 MBA, Art. III(1):
America. x x x. Agreed Locations. United States
forces shall consult on issues
It is mutually agreed that regarding such construction,
Third, in EDCA, the Philippines is- guaranteed access over the entire area of the Agreed the United Statesshall have alterations, and
Locations. On the other hand, given that the U.S. had complete control over its military the rights, power and authority improvements based on the
bases under the 1947 MBA, the treaty did not provide for any express recognition of the within the bases which Parties' shared intent that the
right of access of Philippine authorities. Without that provision and in light of the retention of are necessary for the technical requirements and
U.S. sovereignty over the old military bases, the U.S. could effectively prevent Philippine establishment, use, operation construction standards of any such
authorities from entering those bases. and defense thereof or projects undertaken by or on behalf
appropriate for the control of United States forces should be
thereof and all the rights, consistent with the requirements
1947 MBA EDCA power and authority within the and standards of both Parties.
limits of territorial waters and
No equivalent provision. EDCA, Art. III(5): air space adjacent to, or in the
vicinity of, the bases which
are necessary to provide
The Philippine Designated access to them, or appropriate
Authority and its authorized for their control.
representative shall have access
to the entire area of the Agreed
Locations. Such access shall be
Fifth, the U.S. under the bases agreement was given the authority to use Philippine territory
provided promptly consistent with
for additional staging areas, bombing and gunnery ranges. No such right is given under
operational safety and security
EDCA, as seen below:
requirements in accordance with
agreed procedures developed by
the Parties.
1947 MBA EDCA

1947 MBA, Art. VI: EDCA, Art. III(1):

Fourth, in the bases agreement, the U.S. retained the right, power, and authority over the
establishment, use, operation, defense, and control of military bases, including the limits of
territorial waters and air space adjacent to or in the vicinity of those bases. The only

The United States shall, subject
to previous agreement with the
Philippines, have the right to use
land and coastal sea areas of
appropriate size and location for
periodic maneuvers, for
additional staging areas,
bombing and gunnery ranges,
and for such intermediate
airfields as may be required for
safe and efficient air operations.
Operations in such areas shall
be carried on with due regard
and safeguards for the public
safety.
1947 MBA, Art.I(2):
The Philippines agrees to permit
the United States, upon notice to
the Philippines, to use such of
those bases listed in Annex B as
the United States determines to
be required by military necessity.
Sixth, under the MBA, the U.S. was given the right, power, and authority to control and
prohibit the movement and operation of all types of vehicles within the vicinity of the bases.
The U.S. does not have any right, power, or authority to do so under EDCA.
With consideration of the views of
the Parties,
the Philippines hereby authorizes and
agrees that United States forces, United
States contractors, and vehicles, vessels,
and aircraft operated by or for United
States forces may conduct the following
activities with respect to Agreed Locations:
training; transit; support and related
activities; refueling of aircraft; bunkering of
vessels; temporary maintenance of
vehicles, vessels, and aircraft; temporary
accommodation of personnel;
communications; prepositioning of
equipment, supplies, and materiel;
deploying forces and materiel; and such
other activities as the Parties may agree.
Seventh, under EDCA, the U.S. is merely given temporary access to land and facilities
(including roads, ports, and airfields). On the other hand, the old treaty gave the U.S. the
right to improve and deepen the harbors, channels, entrances, and anchorages; and to
construct or maintain necessary roads and bridges that would afford it access to its military
bases.
1947 MBA EDCA
1947 MBA, Art. 111(2)(c) No equivalent provision.
Such rights, power and authority shall
include, inter alia, the right, power and
authority: x x x x to control (including
the right to prohibit) in so far as may
be required for the efficient operation
and safety of the bases, and within
the limits of military
necessity, anchorages, moorings,
landings, takeoffs, movements and
operation of ships and water-borne
craft, aircraft and other vehicles on
water, in the air or on land comprising
Eighth, in the 1947 MBA, the U.S. was granted the automatic right to use any and all public
utilities, services and facilities, airfields, ports, harbors, roads, highways, railroads, bridges,
viaducts, canals, lakes, rivers, and streams in the Philippines in the same manner that
Philippine military forces enjoyed that right. No such arrangement appears in EDCA. In fact,
it merely extends to U.S. forces temporary access to public land and facilities when
requested:

1947 MBA EDCA

1947 MBA, Art. 111(2)(c)
Such rights, power and authority shall
include, inter alia, the right, power and
authority: x x x x to control (including
the right to prohibit) in so far as may
be required for the efficient operation
and safety of the bases, and within
the limits of military
necessity, anchorages, moorings,
landings, takeoffs, movements and
operation of ships and water-borne
craft, aircraft and other vehicles on
water, in the air or on land comprising
1947 MBA
No equivalent provision.
1947 MBA, Art. VII:
It is mutually agreed that
the United States may employ
and use for United States
military forces any and all public
utilities, other services and
facilities, airfields, ports, harbors,
roads, highways, railroads,
bridges, viaducts, canals, lakes,
rivers and streams in the
Philippines under conditions no
less favorable than those that
may be applicablefrom time to
EDCA
EDCA, Art. III(2):
When requested, the
Designated Authority of
the Philippines shall
assist in facilitating transit
or temporary access by
United States forces to
public land and facilities
(including roads, ports,
and airfields), including
those owned or controlled
by local governments,
and to other land and
 time to the military forces of the facilities (including roads, Annex A and Annex B in order to carry out
Philippines. ports, and airfields). the purposes of this Agreement, the
Philippines will institute and prosecute
such condemnation or expropriation
Ninth, under EDCA, the U.S. no longer has the right, power, and authority to construct, proceedings in accordance with the laws of
install, maintain, and employ any type of facility, weapon, substance, device, vessel or the Philippines. The United States agrees
vehicle, or system unlike in the old treaty. EDCA merely grants the U.S., through bilateral to reimburse the Philippines for all the
security mechanisms, the authority to undertake construction, alteration, or improvements reasonable expenses, damages and costs
on the Philippine-owned Agreed Locations. therebv incurred, including the value of the
property as determined by the Court. In
addition, subject to the mutual agreement
1947 MBA EDCA of the two Governments, the United States
will reimburse the Philippines for the
1947 MBA, Art. III(2)(e): EDCA, Art. III(4): reasonable costs of transportation and
removal of any occupants displaced or
ejected by reason of the condemnation or
Such rights, power and authority shall The Philippines hereby grants to the United expropriation.
include, inter alia, the right, power and authority: x States, through bilateral security mechanisms,
x x x to construct, install, maintain, and employ on such as the MDB and SEB, operational control
any base any type of facilities, weapons, of Agreed Locations for construction activities Eleventh, EDCA does not allow the U.S. to unilaterally bring into the country non-Philippine
substance, device, vessel or vehicle on or under and authority to undertake such activities on, nationals who are under its employ, together with their families, in connection with the
the ground, in the air or on or under the water that and make alterations and improvements to, construction, maintenance, or operation of the bases. EDCA strictly adheres to the limits
may be requisite or appropriate, including Agreed Locations. United States forces shall under the VFA.
meteorological systems, aerial and water consult on issues regarding such construction,
navigation lights, radio and radar apparatus and alterations, and improvements based on the
electronic devices, of any desired power, type of Parties' shared intent that the technical
1947 MBA EDCA
emission and frequency. requirements and construction standards of
any such projects undertaken by or on behalf
1947 MBA, Art. XI(l): EDCA, Art. II:
of United States forces should be consistent
with the requirements and standards of both
Parties. It is mutually agreed that 1. "United States personnel" means United
the United States shall States military and civilian personneltemporarily in the
have the right to bring territory of the Philippines in connection with activities
Tenth, EDCA does not allow the U.S. to acquire, by condemnation or expropriation into the approved by the Philippines, as those terms are defined
proceedings, real property belonging to any private person. The old military bases Philippines members of in the VFA.
agreement gave this right to the U.S. as seen below: the United States military
forces and the United
x xx x
States nationals
1947 MBA EDCA employed by or under a
contract with the United 3. "United States contractors" means companies and
1947 MBA, Art. XXII(l): No equivalent States together with their firms, and their employees, under contract or
provision. families, and technical subcontract to or on behalf of the United States
personnel of other Department of Defense. United States contractors
Whenever it is necessary to acquire by nationalities (not being are not includedas part of the definition of United States
persons excluded by the personnel in this Agreement, including within the context
condemnation or expropriation laws of the Philippines) in of the VFA.
proceedings real property belonging to any connection with the
private persons, associations or construction,
corporations located in bases named in maintenance, or
operation of the bases.
 The United States shall 1947 MBA EDCA
make suitable
arrangements so that 1947 MBA, Art. XVIII(l): No equivalent provision.
such persons may be
readily identified and their
It is mutually agreed that
status established when
the United States
necessary by the
Philippine authorities.
Such persons, other than shall have the right to establish on
members of the United bases, free of all licenses; fees;
States armed forces in sales, excise or other taxes, or
uniform, shall present imposts; Government
their travel documents to agencies, including concessions,
the appropriate Philippine such as sales commissaries
authorities for visas, it and post exchanges; messes and
being understood that no social clubs, for the exclusive use
objection will be made to of the United States military forces
their travel to the and authorized civilian personnel
Philippines as non- and their families. The
immigrants. merchandise or services sold or
dispensed by such agencies shall
be free of all taxes, duties and
Twelfth, EDCA does not allow the U.S. to exercise jurisdiction over any offense committed inspection by the Philippine
by any person within the Agreed Locations, unlike in the former military bases: authorities. Administrative
measures shall be taken by the
appropriate authorities of the
1947 MBA EDCA United States to prevent the
resale of goods which are sold
1947 MBA, Art. XIII(l)(a): No equivalent provision. under the provisions of this Article
to persons not entitled to buy
goods at such agencies and,
The Philippines consents that generally, to prevent abuse of the
the United privileges granted under this
Article. There shall be cooperation
States shall have the right to exercise between such authorities and the
jurisdiction over the following Philippines to this end.
offenses: (a) Any offense committed
by any person within any base except
where the offender and offended In sum, EDCA is a far cry from a basing agreement as was understood by the people at the
parties are both Philippine citizens time that the 1987 Constitution was adopted.
(not members of the armed forces of
the United States on active duty) or Nevertheless, a comprehensive review of what the Constitution means by "foreign military
the offense is against the security of bases" and "facilities" is required before EDCA can be deemed to have passed judicial
the Philippines. scrutiny.

Thirteenth, EDCA does not allow the U.S. to operate military post exchange (PX) facilities, c. The meaning of military facilities and bases
which is free of customs duties and taxes, unlike what the expired MBA expressly allowed.
Parenthetically, the PX store has become the cultural icon of U.S. military presence in the
country.
An appreciation of what a military base is, as understood by the Filipino people in 1987,
would be vital in determining whether EDCA breached the constitutional restriction.
Prior to the drafting of the 1987 Constitution, the last definition of "military base" was
provided under Presidential Decree No. (PD) 1227.328 Unlawful entry into a military base is
punishable under the decree as supported by Article 281 of the Revised Penal Code, which
itself prohibits the act of trespass.
Section 2 of the law defines the term in this manner: "'[M]ilitary base' as used in this
decree means any military, air, naval, or coast guard reservation, base, fort, camp, arsenal,
yard, station, or installation in the Philippines."
Commissioner Tadeo, in presenting his objections to U.S. presence in the Philippines
before the 1986 Constitutional Commission, listed the areas that he considered as military
bases:
1,000 hectares Camp O'Donnel
20,000 hectares Crow Valley Weapon's Range
55,000 hectares Clark Air Base
150 hectares Wallace Air Station
400 hectares John Hay Air Station
15,000 hectares Subic Naval Base
1,000 hectares San Miguel Naval Communication
750 hectares Radio Transmitter in Capas, Tarlac
900 hectares Radio Bigot Annex at Bamban, Tarlac329
The Bases Conversion and Development Act of 1992 described its coverage in its
Declaration of Policies:
Sec. 2. Declaration of Policies. - It is hereby declared the policy of the Government to
accelerate the sound and balanced conversion into alternative productive uses of the Clark
and Subic military reservations and their extensions (John Hay Station, Wallace Air Station,
O'Donnell Transmitter Station, San Miguel Naval Communications Station and Capas
Relay Station), to raise funds by the sale of portions of Metro Manila military camps, and to
apply said funds as provided herein for the development and conversion to productive
civilian use of the lands covered under the 194 7 Military Bases Agreement between the
Philippines and the United States of America, as amended.330
The result of the debates and subsequent voting is Section 25, Article XVIII of the
Constitution, which specifically restricts, among others, foreign military facilities or bases. At
the time of its crafting of the Constitution, the 1986 Constitutional Commission had a clear
idea of what exactly it was restricting. While the term "facilities and bases" was left
undefined, its point of reference was clearly those areas covered by the 1947 MBA as
amended.
Notably, nearly 30 years have passed since then, and the ever-evolving world of military
technology and geopolitics has surpassed the understanding of the Philippine people in
1986. The last direct military action of the U.S. in the region was the use of Subic base as
the staging ground for Desert Shield and Desert Storm during the Gulf War. 331In 1991, the
Philippine Senate rejected the successor treaty of the 1947 MBA that would have allowed
the continuation of U.S. bases in the Philippines.
Henceforth, any proposed entry of U.S. forces into the Philippines had to evolve likewise,
taking into consideration the subsisting agreements between both parties, the rejection of
the 1991 proposal, and a concrete understanding of what was constitutionally restricted.
This trend birthed the VFA which, as discussed, has already been upheld by this Court.
The latest agreement is EDCA, which proposes a novel concept termed "Agreed
Locations."
By definition, Agreed Locations are
facilities and areas that are provided by the Government of the Philippines through the AFP
and that United States forces, United States contractors, and others as mutually agreed,
shall have the right to access and use pursuant to this Agreement. Such Agreed Locations
may be listed in an annex to be appended to this Agreement, and may be further described
in implementing arrangements.332
Preliminarily, respondent already claims that the proviso that the Philippines shall retain
ownership of and title to the Agreed Locations means that EDCA is "consistent with Article
II of the VFA which recognizes Philippine sovereignty and jurisdiction over locations within
Philippine territory.333
By this interpretation, respondent acknowledges that the contention of petitioners springs
from an understanding that the Agreed Locations merely circumvent the constitutional
restrictions. Framed differently, the bone of contention is whether the Agreed Locations are,
from a legal perspective, foreign military facilities or bases. This legal framework triggers
Section 25, Article XVIII, and makes Senate concurrence a sine qua non.
Article III of EDCA provides for Agreed Locations, in which the U.S. is authorized by the
Philippines to "conduct the following activities: "training; transit; support and related
activities; refueling of aircraft; bunkering of vessels; temporary maintenance of vehicles,
vessels and aircraft; temporary accommodation of personnel; communications;
prepositioning of equipment, supplies and materiel; deploying forces and materiel; and such
other activities as the Parties may agree."
This creation of EDCA must then be tested against a proper interpretation of the Section 25
restriction.
d. Reasons for the constitutional requirements and legal standards for constitutionally
compatible military bases and facilities
Section 25 does not define what is meant by a "foreign military facility or base." While it
specifically alludes to U.S. military facilities and bases that existed during the framing of the
Constitution, the provision was clearly meant to apply to those bases existing at the time
and to any future facility or base. The basis for the restriction must first be deduced from
the spirit of the law, in order to set a standard for the application of its text, given the
particular historical events preceding the agreement.
Once more, we must look to the 1986 Constitutional Commissioners to glean, from their
collective wisdom, the intent of Section 25. Their speeches are rich with history and wisdom
and present a clear picture of what they considered in the crafting the provision.
SPEECH OF COMMISSIONER REGALADO334
xxxx
We have been regaled here by those who favor the adoption of the anti-bases provisions
with what purports to be an objective presentation of the historical background of the
military bases in the Philippines. Care appears, however, to have been taken to underscore
the inequity in their inception as well as their implementation, as to seriously reflect on the
supposed objectivity of the report. Pronouncements of military and civilian officials shortly
after World War II are quoted in support of the proposition on neutrality; regrettably, the
implication is that the same remains valid today, as if the world and international activity
stood still for the last 40 years.
We have been given inspired lectures on the effect of the presence of the military bases on
our sovereignty - whether in its legal or political sense is not clear - and the theory that any
country with foreign bases in its territory cannot claim to be fully sovereign or completely
independent. I was not aware that the concepts of sovereignty and independence have now
assumed the totality principle, such that a willing assumption of some delimitations in the
exercise of some aspects thereof would put that State in a lower bracket of nationhood.
xxxx
We have been receiving a continuous influx of materials on the pros and cons on the
advisability of having military bases within our shores. Most of us who, only about three
months ago, were just mulling the prospects of these varying contentions are now
expected, like armchair generals, to decide not only on the geopolitical aspects and
contingent implications of the military bases but also on their political, social, economic and
cultural impact on our national life. We are asked to answer a plethora of questions, such
as: 1) whether the bases are magnets of nuclear attack or are deterrents to such attack; 2)
whether an alliance or mutual defense treaty is a derogation of our national sovereignty; 3)
whether criticism of us by Russia, Vietnam and North Korea is outweighed by the support
for us of the ASEAN countries, the United States, South Korea, Taiwan, Australia and New
Zealand; and 4) whether the social, moral and legal problems spawned by the military
bases and their operations can be compensated by the economic benefits outlined in
papers which have been furnished recently to all of us.335
xxxx
Of course, one side of persuasion has submitted categorical, unequivocal and forceful
assertions of their positions. They are entitled to the luxury of the absolutes. We are urged
now to adopt the proposed declaration as a "golden," "unique" and "last" opportunity for
Filipinos to assert their sovereign rights. Unfortunately, I have never been enchanted by
superlatives, much less for the applause of the moment or the ovation of the hour. Nor do I
look forward to any glorious summer after a winter of political discontent. Hence, if I may
join Commissioner Laurel, I also invoke a caveat not only against the tyranny of labels but
also the tyranny of slogans.336
xxxx
SPEECH OF COMMISSIONER SUAREZ337
MR. SUAREZ: Thank you, Madam President.
I am quite satisfied that the crucial issues involved in the resolution of the problem of the
removal of foreign bases from the Philippines have been adequately treated by previous
speakers. Let me, therefore, just recapitulate the arguments adduced in favor of a foreign
bases-free Philippines:
1. That every nation should be free to shape its own destiny without outside
interference;
2. That no lasting peace and no true sovereignty would ever be achieved so long
as there are foreign military forces in our country;
3. That the presence of foreign military bases deprives us of the very substance
of national sovereigntyand this is a constant source of national embarrassment
and an insult to our national dignity and selfrespect as a nation;
 4. That these foreign military bases unnecessarily expose our country to
devastating nuclear attacks;
5. That these foreign military bases create social problems and are designed to
perpetuate the strangle-hold of United States interests in our national economy
and development;
6. That the extraterritorial rights enjoyed by these foreign bases operate
to deprive our country of jurisdiction over civil and criminal offenses committed
within our own national territory and against Filipinos;
7. That the bases agreements are colonial impositions and dictations upon our
helpless country; and
8. That on the legal viewpoint and in the ultimate analysis, all the bases
agreements are null and void ab initio, especially because they did not count the
sovereign consent and will of the Filipino people.338
xxxx
In the real sense, Madam President, if we in the Commission could accommodate the
provisions I have cited, what is our objection to include in our Constitution a matter as
priceless as the nationalist values we cherish? A matter of the gravest concern for the
safety and survival of this nation indeed deserves a place in our Constitution.
xxxx
x x x Why should we bargain away our dignity and our self-respect as a nation and the
future of generations to come with thirty pieces of silver?339
SPEECH OF COMMISSIONER BENNAGEN340
xxxx
The underlying principle of military bases and nuclear weapons wherever they are found
and whoever owns them is that those are for killing people or for terrorizing humanity. This
objective by itself at any point in history is morally repugnant. This alone is reason enough
for us to constitutionalize the ban on foreign military bases and on nuclear weapons. 341
SPEECH OF COMMISSIONER BACANI342
xxxx
x x x Hence, the remedy to prostitution does not seem to be primarily to remove the
bases because even if the bases are removed, the girls mired in poverty will look for their
clientele elsewhere. The remedy to the problem of prostitution lies primarily elsewhere - in
an alert and concerned citizenry, a healthy economy and a sound education in values.343
SPEECH OF COMMISSIONER JAMIR344
xxxx
One of the reasons advanced against the maintenance of foreign military bases here is that
they impair portions of our sovereignty. While I agree that our country's sovereignty should
not be impaired, I also hold the view that there are times when it is necessary to do so
according to the imperatives of national interest. There are precedents to this effect. Thus,
during World War II, England leased its bases in the West Indies and in Bermuda for 99
years to the United States for its use as naval and air bases. It was done in consideration of
50 overaged destroyers which the United States gave to England for its use in the Battle of
the Atlantic.
A few years ago, England gave the Island of Diego Garcia to the United States for the
latter's use as a naval base in the Indian Ocean. About the same time, the United States
obtained bases in Spain, Egypt and Israel. In doing so, these countries, in effect,
contributed to the launching of a preventive defense posture against possible trouble in the
Middle East and in the Indian Ocean for their own protection.345
SPEECH OF COMMISSIONER TINGSON346
xxxx
In the case of the Philippines and the other Southeast Asian nations, the presence of
American troops in the country is a projection of America's security interest. Enrile said that
nonetheless, they also serve, although in an incidental and secondary way, the security
interest of the Republic of the Philippines and the region. Yes, of course, Mr. Enrile also
echoes the sentiments of most of us in this Commission, namely: It is ideal for us as an
independent and sovereign nation to ultimately abrogate the RP-US military treaty and, at
the right time, build our own air and naval might.347
xxxx
Allow me to say in summation that I am for the retention of American military bases in the
Philippines provided that such an extension from one period to another shall be concluded
upon concurrence of the parties, and such extension shall be based on justice, the
historical amity of the people of the Philippines and the United States and their common
defense interest.348
SPEECH OF COMMISSIONER ALONTO349
xxxx
Madam President, sometime ago after this Commission started with this task of framing a
constitution, I read a statement of President Aquino to the effect that she is for the removal
of the U.S. military bases in this country but that the removal of the U.S. military bases
should not be done just to give way to other foreign bases. Today, there are two world
superpowers, both vying to control any and all countries which have importance to their
strategy for world domination. The Philippines is one such country.
Madam President, I submit that I am one of those ready to completely remove any vestiges
of the days of enslavement, but not prepared to erase them if to do so would merely leave a
vacuum to be occupied by a far worse type.350
Para sa magbubukid, ano ha ang kahulugan ng U.S. military bases? Para sa
magbubukid, ang kahulugan nito ay pagkaalipin. Para sa magbubukid, ang pananatili
ng U.S. military bases ay tinik sa dibdib ng sambayanang Pilipinong patuloy na nakabaon.
Para sa sambayanang magbubukid, ang ibig sabihin ng U.S. military bases ay batong
pabigat na patuloy na pinapasan ng sambayanang Pilipino. Para sa sambayanang
magbubukid, ang pananatili ng U.S. military bases ay isang nagdudumilat na katotohanan
ng patuloy na paggahasa ng imperyalistang Estados Unidos sa ating Inang Bayan -
economically, politically and culturally. Para sa sambayanang magbubukid ang U.S. military
bases ay kasingkahulugan ng nuclear weapon - ang kahulugan ay magneto ng
isang nuclear war. Para sa sambayanang magbubukid, ang kahulugan ng U.S. military
bases ay isang salot.355
SPEECH OF COMMISSIONER QUESADA356

SPEECH OF COMMISSIONER GASCON351

xxxx

xxxx
The drift in the voting on issues related to freeing ourselves from the instruments of
domination and subservience has clearly been defined these past weeks.
Let us consider the situation of peace in our world today. Consider our brethren in the
Middle East, in Indo-China, Central America, in South Africa - there has been escalation of
xxxx
war in some of these areas because of foreign intervention which views these conflicts
through the narrow prism of the East-West conflict. The United States bases have been
used as springboards for intervention in some of these conflicts. We should not allow So for the record, Mr. Presiding Officer, I would like to declare my support for the
ourselves to be party to the warlike mentality of these foreign interventionists. We must committee's position to enshrine in the Constitution a fundamental principle forbidding
always be on the side of peace this means that we should not always rely on military foreign military bases, troops or facilities in any part of the Philippine territory as a clear and
solution.352 concrete manifestation of our inherent right to national self-determination, independence
and sovereignty.
xxxx
Mr. Presiding Officer, I would like to relate now these attributes of genuine nationhood to
the social cost of allowing foreign countries to maintain military bases in our country.
x x x The United States bases, therefore, are springboards for intervention in our own
Previous speakers have dwelt on this subject, either to highlight its importance in relation to
internal affairs and in the affairs of other nations in this region.
the other issues or to gloss over its significance and !llake this a part of future
negotiations.357
xxxx
xxxx
Thus, I firmly believe that a self-respecting nation should safeguard its fundamental
freedoms which should logically be declared in black and white in our fundamental law of
Mr. Presiding Officer, I feel that banning foreign military bases is one of the solutions and is
the land - the Constitution. Let us express our desire for national sovereignty so we may be
the response of the Filipino people against this condition and other conditions that have
able to achieve national self-determination. Let us express our desire for neutrality so that
already been clearly and emphatically discussed in past deliberations. The deletion,
we may be able to follow active nonaligned independent foreign policies. Let us express our
therefore, of Section 3 in the Constitution we are drafting will have the following
desire for peace and a nuclear-free zone so we may be able to pursue a healthy and
implications:
tranquil existence, to have peace that is autonomous and not imposed. 353

First, the failure of the Constitutional Commission to decisively respond to the continuing
xxxx
violation of our territorial integrity via the military bases agreement which permits the
retention of U.S. facilities within the Philippine soil over which our authorities have no
SPEECH OF COMMISSIONER TADEO354 exclusive jurisdiction contrary to the accepted definition of the exercise of sovereignty.
Second, consent by this forum, this Constitutional Commission, to an exception in the
application of a provision in the Bill of Rights that we have just drafted regarding equal
application of the laws of the land to all inhabitants, permanent or otherwise, within its
territorial boundaries.
Third, the continued exercise by the United States of extraterritoriality despite the
condemnations of such practice by the world community of nations in the light of
overwhelming international approval of eradicating all vestiges of colonialism. 358
xxxx
Sixth, the deification of a new concept called pragmatic sovereignty, in the hope that such
can be wielded to force the United States government to concede to better terms and
conditions concerning the military bases agreement, including the transfer of complete
control to the Philippine government of the U.S. facilities, while in the meantime we have to
suffer all existing indignities and disrespect towards our rights as a sovereign nation.
xxxx
Eighth, the utter failure of this forum to view the issue of foreign military bases as
essentially a question of sovereignty which does not require in-depth studies or analyses
and which this forum has, as a constituent assembly drafting a constitution, the expertise
and capacity to decide on except that it lacks the political will that brought it to existence
and now engages in an elaborate scheme of buck-passing.
xxxx
Without any doubt we can establish a new social order in our country, if we reclaim, restore,
uphold and defend our national sovereignty. National sovereignty is what the military bases
issue is all about. It is only the sovereign people exercising their national sovereignty who
can design an independent course and take full control of their national destiny.359
SPEECH OF COMMISSIONER P ADILLA360
xxxx
Mr. Presiding Officer, in advocating the majority committee report, specifically Sections 3
and 4 on neutrality, nuclear and bases-free country, some views stress sovereignty of the
Republic and even invoke survival of the Filipino nation and people.361
REBUTTAL OF COMMISSIONER NOLLEDO362
xxxx
The anachronistic and ephemeral arguments against the provisions of the committee report
to dismantle the American bases after 1991 only show the urgent need to free our country
from the entangling alliance with any power bloc.363
xxxx
xx x Mr. Presiding Officer, it is not necessary for us to possess expertise to know that the
so-called RP-US Bases Agreement will expire in 1991, that it infringes on our sovereignty
and jurisdiction as well as national dignity and honor, that it goes against the UN policy of
disarmament and that it constitutes unjust intervention in our internal affairs.364 (Emphases
Supplied)
The Constitutional Commission eventually agreed to allow foreign military bases, troops, or
facilities, subject to the provisions of Section 25. It is thus important to read its discussions
carefully. From these discussions, we can deduce three legal standards that were
articulated by the Constitutional Commission Members. These are characteristics of any
agreement that the country, and by extension this Court, must ensure are observed. We
can thereby determine whether a military base or facility in the Philippines, which houses or
is accessed by foreign military troops, is foreign or remains a Philippine military base or
facility. The legal standards we find applicable are: independence from foreign control,
sovereignty and applicable law, and national security and territorial integrity.
i. First standard: independence from foreign control
Very clearly, much of the opposition to the U.S. bases at the time of the Constitution's
drafting was aimed at asserting Philippine independence from the U.S., as well as control
over our country's territory and military.
Under the Civil Code, there are several aspects of control exercised over property.
Property is classified as private or public.365 It is public if "intended for public use, such as
roads, canals, rivers, torrents, ports and bridges constructed by the State, banks, shores,
roadsteads, and others of similar character[,]" or "[t]hose which belong to the State, without
being for public use, and are intended for some public service or for the development of the
national wealth. "366
Quite clearly, the Agreed Locations are contained within a property for public use, be it
within a government military camp or property that belongs to the Philippines.1avvphi1
Once ownership is established, then the rights of ownership flow freely. Article 428 of the
Civil Code provides that "[t]he owner has the right to enjoy and dispose of a thing, without
other limitations than those established by law." Moreover, the owner "has also a right of
action against the holder and possessor of the thing in order to recover it."
Philippine civil law therefore accords very strong rights to the owner of property, even
against those who hold the property. Possession, after all, merely raises a disputable
presumption of ownership, which can be contested through normal judicial processes.367
In this case, EDCA explicitly provides that ownership of the Agreed Locations remains with
the Philippine govemment.368 What U.S. personnel have a right to, pending mutual
agreement, is access to and use of these locations.369
The right of the owner of the property to allow access and use is consistent with the Civil
Code, since the owner may dispose of the property in whatever way deemed fit, subject to
the limits of the law. So long as the right of ownership itself is not transferred, then
whatever rights are transmitted by agreement does not completely divest the owner of the
rights over the property, but may only limit them in accordance with law.
Hence, even control over the property is something that an owner may transmit freely. This
act does not translate into the full transfer of ownership, but only of certain rights. In Roman
Catholic Apostolic Administrator of Davao, Inc. v. Land Registration Commission, we stated
that the constitutional proscription on property ownership is not violated despite the foreign
national's control over the property.370
EDCA, in respect of its provisions on Agreed Locations, is essentially a contract of use and
access. Under its pertinent provisions, it is the Designated Authority of the Philippines that
shall, when requested, assist in facilitating transit or access to public land and
facilities.371 The activities carried out within these locations are subject to agreement as
authorized by the Philippine govemment.372 Granting the U.S. operational control over
these locations is likewise subject to EDCA' s security mechanisms, which are bilateral
procedures involving Philippine consent and cooperation. 373 Finally, the Philippine
Designated Authority or a duly designated representative is given access to the Agreed
Locations.374
To our mind, these provisions do not raise the spectre of U.S. control, which was so feared
by the Constitutional Commission. In fact, they seem to have been the product of deliberate
negotiation from the point of view of the Philippine government, which balanced
constitutional restrictions on foreign military bases and facilities against the security needs
of the country. In the 1947 MBA, the U.S. forces had "the right, power and authority x x x to
construct (including dredging and filling), operate, maintain, utilize, occupy, garrison and
control the bases."375 No similarly explicit provision is present in EDCA.
Nevertheless, the threshold for allowing the presence of foreign military facilities and bases
has been raised by the present Constitution. Section 25 is explicit that foreign military
bases, troops, or facilities shall not be allowed in the Philippines, except under a treaty duly
concurred in by the Senate. Merely stating that the Philippines would retain ownership
would do violence to the constitutional requirement if the Agreed Locations were simply to
become a less obvious manifestation of the U.S. bases that were rejected in 1991.
When debates took place over the military provisions of the Constitution, the committee
rejected a specific provision proposed by Commissioner Sarmiento. The discussion
illuminates and provides context to the 1986 Constitutional Commission's vision of control
and independence from the U.S., to wit:
MR. SARMIENTO: Madam President, my proposed amendment reads as follows: "THE
STATE SHALL ESTABLISH AND MAINTAIN AN INDEPENDENT AND SELF-RELIANT
ARMED FORCES OF THE PHILIPPINES." Allow me to briefly explain, Madam President.
The Armed Forces of the Philippines is a vital component of Philippine society depending
upon its training, orientation and support. It will either be the people's protector or a staunch
supporter of a usurper or tyrant, local and foreign interest. The Armed Forces of the
Philippines' past and recent experience shows it has never been independent and self-
reliant. Facts, data and statistics will show that it has been substantially dependent upon a
foreign power. In March 1968, Congressman Barbero, himself a member of the Armed
Forces of the Philippines, revealed top secret documents showing what he described as
U.S. dictation over the affairs of the Armed Forces of the Philippines. He showed that under
existing arrangements, the United States unilaterally determines not only the types and
quantity of arms and equipments that our armed forces would have, but also the time when
these items are to be made available to us. It is clear, as he pointed out, that the
composition, capability and schedule of development of the Armed Forces of the
Philippines is under the effective control of the U.S. government.376 (Emphases supplied)
Commissioner Sarmiento proposed a motherhood statement in the 1987 Constitution that
would assert "independent" and "self-reliant" armed forces. This proposal was rejected by
the committee, however. As Commissioner De Castro asserted, the involvement of the
Philippine military with the U.S. did not, by itself, rob the Philippines of its real
independence. He made reference to the context of the times: that the limited resources of
the Philippines and the current insurgency at that time necessitated a strong military
relationship with the U.S. He said that the U.S. would not in any way control the Philippine
military despite this relationship and the fact that the former would furnish military hardware
or extend military assistance and training to our military. Rather, he claimed that the
proposal was in compliance with the treaties between the two states.
MR. DE CASTRO: If the Commissioner will take note of my speech on U.S. military bases
on 12 September 1986, I spoke on the selfreliance policy of the armed forces. However,
due to very limited resources, the only thing we could do is manufacture small arms
ammunition. We cannot blame the armed forces. We have to blame the whole Republic of
the Philippines for failure to provide the necessary funds to make the Philippine Armed
Forces self-reliant. Indeed that is a beautiful dream. And I would like it that way. But as of
this time, fighting an insurgency case, a rebellion in our country - insurgency - and with very
limited funds and very limited number of men, it will be quite impossible for the Philippines
to appropriate the necessary funds therefor. However, if we say that the U.S. government is
furnishing us the military hardware, it is not control of our armed forces or of our
government. It is in compliance with the Mutual Defense Treaty. It is under the military
assistance program that it becomes the responsibility of the United States to furnish us the
necessary hardware in connection with the military bases agreement. Please be informed
that there are three (3) treaties connected with the military bases agreement; namely: the
RP-US Military Bases Agreement, the Mutual Defense Treaty and the Military Assistance
Program.
My dear Commissioner, when we enter into a treaty and we are furnished the military
hardware pursuant to that treaty, it is not in control of our armed forces nor control of our
government. True indeed, we have military officers trained in the U.S. armed forces school.
This is part of our Military Assistance Program, but it does not mean that the minds of our
military officers are for the U.S. government, no. I am one of those who took four courses in
the United States schools, but I assure you, my mind is for the Filipino people. Also, while
we are sending military officers to train or to study in U.S. military schools, we are also
sending our officers to study in other military schools such as in Australia, England and in
Paris. So, it does not mean that when we send military officers to United States schools or
to other military schools, we will be under the control of that country. We also have foreign
officers in our schools, we in the Command and General Staff College in Fort Bonifacio and
in our National Defense College, also in Fort Bonifacio.377 (Emphases supplied)
This logic was accepted in Taada v. Angara, in which the Court ruled that independence
does not mean the absence of foreign participation:
Furthermore, the constitutional policy of a "self-reliant and independent national
economy" 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:
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.378 (Emphases supplied)
The heart of the constitutional restriction on foreign military facilities and bases is therefore
the assertion of independence from the U.S. and other foreign powers, as independence is
exhibited by the degree of foreign control exerted over these areas.1wphi1 The essence
of that independence is self-governance and self-control.379 Independence itself is "[t]he
state or condition of being free from dependence, subjection, or control. " 380
Petitioners assert that EDCA provides the U.S. extensive control and authority over
Philippine facilities and locations, such that the agreement effectively violates Section 25 of
the 1987 Constitution.381
Under Article VI(3) of EDCA, U.S. forces are authorized to act as necessary for "operational
control and defense." The term "operational control" has led petitioners to regard U.S.
control over the Agreed Locations as unqualified and, therefore, total. 382 Petitioners contend
that the word "their" refers to the subject "Agreed Locations."
This argument misreads the text, which is quoted below:
United States forces are authorized to exercise all rights and authorities within Agreed
Locations that are necessary for their operational control or defense, including taking
appropriate measure to protect United States forces and United States contractors. The
United States should coordinate such measures with appropriate authorities of the
Philippines.
A basic textual construction would show that the word "their," as understood above, is a
possessive pronoun for the subject "they," a third-person personal pronoun in plural form.
Thus, "their" cannot be used for a non-personal subject such as "Agreed Locations." The
simple grammatical conclusion is that "their" refers to the previous third-person plural noun,
which is "United States forces." This conclusion is in line with the definition of operational
control.
a. U.S. operational control as the exercise of authority over U.S. personnel, and not over
the Agreed Locations
Operational control, as cited by both petitioner and respondents, is a military term referring
to
[t]he authority to perform those functions of command over subordinate forces involving
organizing and employing commands and forces, assigning tasks, designating objective,
and giving authoritative direction necessary to accomplish the mission. 383
At times, though, operational control can mean something slightly different. In JUSMAG
Philippines v. National Labor Relations Commission, the Memorandum of Agreement
between the AFP and JUSMAG Philippines defined the term as follows: 384
The term "Operational Control" includes, but is not limited to, all personnel administrative
actions, such as: hiring recommendations; firing recommendations; position classification;
discipline; nomination and approval of incentive awards; and payroll computation.
Clearly, traditional standards define "operational control" as personnel control. Philippine
law, for instance, deems operational control as one exercised by police officers and civilian
authorities over their subordinates and is distinct from the administrative control that they
also exercise over police subordinates.385 Similarly, a municipal mayor exercises
operational control over the police within the municipal government,386 just as city mayor
possesses the same power over the police within the city government. 387
Thus, the legal concept of operational control involves authority over personnel in a
commander-subordinate relationship and does not include control over the Agreed
Locations in this particular case. Though not necessarily stated in EDCA provisions, this
interpretation is readily implied by the reference to the taking of "appropriate measures to
protect United States forces and United States contractors."
It is but logical, even necessary, for the U.S. to have operational control over its own forces,
in much the same way that the Philippines exercises operational control over its own units.
For actual operations, EDCA is clear that any activity must be planned and pre-approved by
the MDB-SEB.388 This provision evinces the partnership aspect of EDCA, such that both
stakeholders have a say on how its provisions should be put into effect.
b. Operational control vis--vis effective command and control
Petitioners assert that beyond the concept of operational control over personnel, qualifying
access to the Agreed Locations by the Philippine Designated Authority with the phrase
"consistent with operational safety and security requirements in accordance with agreed
procedures developed by the Parties" leads to the conclusion that the U.S. exercises
effective control over the Agreed Locations.389 They claim that if the Philippines exercises
possession of and control over a given area, its representative should not have to be
authorized by a special provision.390
For these reasons, petitioners argue that the "operational control" in EDCA is the "effective
command and control" in the 1947 MBA.391 In their Memorandum, they distinguish effective
command and control from operational control in U.S. parlance. 392 Citing the Doctrine for
the Armed Forces of the United States, Joint Publication 1, "command and control (C2)" is
defined as "the exercise of authority and direction by a properly designated commander
over assigned and attached forces in the accomplishment of the mission x x
x."393 Operational control, on the other hand, refers to "[t]hose functions of command over
assigned forces involving the composition of subordinate forces, the assignment of tasks,
the designation of objectives, the overall control of assigned resources, and the full
authoritative direction necessary to accomplish the mission." 394
Two things demonstrate the errors in petitioners' line of argument.
Firstly, the phrase "consistent with operational safety and security requirements in
accordance with agreed procedures developed by the Parties" does not add any
qualification beyond that which is already imposed by existing treaties. To recall, EDCA is
based upon prior treaties, namely the VFA and the MDT. 395 Treaties are in themselves
contracts from which rights and obligations may be claimed or waived. 396 In this particular
case, the Philippines has already agreed to abide by the security mechanisms that have
long been in place between the U.S. and the Philippines based on the implementation of
their treaty relations.397
Secondly, the full document cited by petitioners contradicts the equation of "operational
control" with "effective command and control," since it defines the terms quite
differently, viz:398
Command and control encompasses the exercise of authority, responsibility, and direction
by a commander over assigned and attached forces to accomplish the mission. Command
at all levels is the art of motivating and directing people and organizations into action to
accomplish missions. Control is inherent in command. To control is to manage and direct
forces and functions consistent with a commander's command authority. Control of forces
and functions helps commanders and staffs compute requirements, allocate means, and
integrate efforts. Mission command is the preferred method of exercising C2. A complete
discussion of tenets, organization, and processes for effective C2 is provided in Section B,
"Command and Control of Joint Forces," of Chapter V "Joint Command and Control."
Operational control is defined thus:399
OPCON is able to be delegated from a lesser authority than COCOM. It is the authority to
perform those functions of command over subordinate forces involving organizing and
employing commands and forces, assigning tasks, designating objectives, and giving
authoritative direction over all aspects of military operations and joint training necessary to
accomplish the mission. It should be delegated to and exercised by the commanders of
subordinate organizations; normally, this authority is exercised through subordinate JFCs,
Service, and/or functional component commanders. OPCON provides authority to organize
and employ commands and forces as the commander considers necessary to accomplish
assigned missions. It does not include authoritative direction for logistics or matters of
administration, discipline, internal organization, or unit training. These elements of COCOM
must be specifically delegated by the CCDR. OPCON does include the authority to
delineate functional responsibilities and operational areas of subordinate JFCs.
Operational control is therefore the delegable aspect of combatant command, while
command and control is the overall power and responsibility exercised by the commander
with reference to a mission. Operational control is a narrower power and must be given,
while command and control is plenary and vested in a commander. Operational control
does not include the planning, programming, budgeting, and execution process input; the
assignment of subordinate commanders; the building of relationships with Department of
Defense agencies; or the directive authority for logistics, whereas these factors are
included in the concept of command and control.400
This distinction, found in the same document cited by petitioners, destroys the very
foundation of the arguments they have built: that EDCA is the same as the MBA.
c. Limited operational control over the Agreed Locations only for construction activitites
As petitioners assert, EDCA indeed contains a specific provision that gives to the U.S.
operational control within the Agreed Locations during construction activities. 401 This
exercise of operational control is premised upon the approval by the MDB and the SEB of
the construction activity through consultation and mutual agreement on the requirements
and standards of the construction, alteration, or improvement. 402
Despite this grant of operational control to the U.S., it must be emphasized that the grant is
only for construction activities. The narrow and limited instance wherein the U.S. is given
operational control within an Agreed Location cannot be equated with foreign military
control, which is so abhorred by the Constitution.
The clear import of the provision is that in the absence of construction activities, operational
control over the Agreed Location is vested in the Philippine authorities. This meaning is
implicit in the specific grant of operational control only during construction activities. The
principle of constitutional construction, "expressio unius est exclusio alterius," means the
failure to mention the thing becomes the ground for inferring that it was deliberately
excluded.403Following this construction, since EDCA mentions the existence of U.S.
operational control over the Agreed Locations for construction activities, then it is quite
logical to conclude that it is not exercised over other activities.
Limited control does not violate the Constitution. The fear of the commissioners was total
control, to the point that the foreign military forces might dictate the terms of their acts
within the Philippines.404 More important, limited control does not mean an abdication or
derogation of Philippine sovereignty and legal jurisdiction over the Agreed Locations. It is
more akin to the extension of diplomatic courtesies and rights to diplomatic agents, 405 which
is a waiver of control on a limited scale and subject to the terms of the treaty.
This point leads us to the second standard envisioned by the framers of the Constitution:
that the Philippines must retain sovereignty and jurisdiction over its territory.
ii. Second standard: Philippine sovereignty and applicable law
EDCA states in its Preamble the "understanding for the United States not to establish a
permanent military presence or base in the territory of the Philippines." Further on, it
likewise states the recognition that "all United States access to and use of facilities and
areas will be at the invitation of the Philippines and with full respect for the Philippine
Constitution and Philippine laws."
The sensitivity of EDCA provisions to the laws of the Philippines must be seen in light of
Philippine sovereignty and jurisdiction over the Agreed Locations.
Sovereignty is the possession of sovereign power,406 while jurisdiction is the conferment by
law of power and authority to apply the law.407 Article I of the 1987 Constitution states:
The national territory comprises the Philippine archipelago, with all the islands and waters
embraced therein, and all other territories over which the Philippines has sovereignty or
jurisdiction, consisting of its terrestrial, fluvial, and aerial domains, including its territorial
sea, the seabed, the subsoil, the insular shelves, and other submarine areas. The waters
around, between, and connecting the islands of the archipelago, regardless of their breadth
and dimensions, form part of the internal waters of the Philippines. (Emphasis supplied)
From the text of EDCA itself, Agreed Locations are territories of the Philippines that the
U.S. forces are allowed to access and use. 408 By withholding ownership of these areas and
retaining unrestricted access to them, the government asserts sovereignty over its territory.
That sovereignty exists so long as the Filipino people exist.409
Significantly, the Philippines retains primary responsibility for security with respect to the
Agreed Locations.410Hence, Philippine law remains in force therein, and it cannot be said
that jurisdiction has been transferred to the U.S. Even the previously discussed necessary
measures for operational control and defense over U.S. forces must be coordinated with
Philippine authorities.411
Jurisprudence bears out the fact that even under the former legal regime of the MBA,
Philippine laws continue to be in force within the bases.412 The difference between then and
now is that EDCA retains the primary jurisdiction of the Philippines over the security of the
Agreed Locations, an important provision that gives it actual control over those locations.
Previously, it was the provost marshal of the U.S. who kept the peace and enforced
Philippine law in the bases. In this instance, Philippine forces act as peace officers, in stark
contrast to the 1947 MBA provisions on jurisdiction.413
iii. Third standard: must respect national security and territorial integrity
The last standard this Court must set is that the EDCA provisions on the Agreed Locations
must not impair or threaten the national security and territorial integrity of the Philippines.
This Court acknowledged in Bayan v. Zamora that the evolution of technology has
essentially rendered the prior notion of permanent military bases obsolete.
Moreover, military bases established within the territory of another state is no longer viable
because of the alternatives offered by new means and weapons of warfare such as nuclear
weapons, guided missiles as well as huge sea vessels that can stay afloat in the sea even
for months and years without returning to their home country. These military warships are
actually used as substitutes for a land-home base not only of military aircraft but also of
military personnel and facilities. Besides, vessels are mobile as compared to a land-based
military headquarters.414
The VFA serves as the basis for the entry of U.S. troops in a limited scope. It does not
allow, for instance, the re-establishment of the Subic military base or the Clark Air Field as
U.S. military reservations. In this context, therefore, this Court has interpreted the
restrictions on foreign bases, troops, or facilities as three independent restrictions. In
accord with this interpretation, each restriction must have its own qualification.
Petitioners quote from the website http://en.wikipedia.org to define what a military base
is.415 While the source is not authoritative, petitioners make the point that the Agreed
Locations, by granting access and use to U.S. forces and contractors, are U.S. bases under
a different name.416 More important, they claim that the Agreed Locations invite instances of
attack on the Philippines from enemies of the U.S.417
We believe that the raised fear of an attack on the Philippines is not in the realm of law, but
of politics and policy. At the very least, we can say that under international law, EDCA does
not provide a legal basis for a justified attack on the Philippines.
In the first place, international law disallows any attack on the Agreed Locations simply
because of the presence of U.S. personnel. Article 2(4) of the United Nations Charter states
that "All Members shall refrain in their international relations from the threat or use of force
against the territorial integrity or political independence of any state, or in any other manner
inconsistent with the Purposes of the United Nations."418 Any unlawful attack on the
Philippines breaches the treaty, and triggers Article 51 of the same charter, which
guarantees the inherent right of individual or collective self-defence.
Moreover, even if the lawfulness of the attack were not in question, international
humanitarian law standards prevent participants in an armed conflict from targeting non-
participants. International humanitarian law, which is the branch of international law
applicable to armed conflict, expressly limits allowable military conduct exhibited by forces
of a participant in an armed conflict.419 Under this legal regime, participants to an armed
conflict are held to specific standards of conduct that require them to distinguish between
combatants and non-combatants,420 as embodied by the Geneva Conventions and their
Additional Protocols.421
Corollary to this point, Professor John Woodcliffe, professor of international law at the
University of Leicester, noted that there is no legal consensus for what constitutes a base,
as opposed to other terms such as "facilities" or "installation." 422 In strategic literature,
"base" is defined as an installation "over which the user State has a right to exclusive
control in an extraterritorial sense."423 Since this definition would exclude most foreign
military installations, a more important distinction must be made.
For Woodcliffe, a type of installation excluded from the definition of "base" is one that does
not fulfill a combat role. He cites an example of the use of the territory of a state for training
purposes, such as to obtain experience in local geography and climactic conditions or to
carry out joint exercises.424 Another example given is an advanced communications
technology installation for purposes of information gathering and
communication.425 Unsurprisingly, he deems these non-combat uses as borderline
situations that would be excluded from the functional understanding of military bases and
installations.426
By virtue of this ambiguity, the laws of war dictate that the status of a building or person is
presumed to be protected, unless proven otherwise. 427 Moreover, the principle of distinction
requires combatants in an armed conflict to distinguish between lawful targets 428 and
protected targets.429 In an actual armed conflict between the U.S. and a third state, the
Agreed Locations cannot be considered U.S. territory, since ownership of territory even in
times of armed conflict does not change.430
Hence, any armed attack by forces of a third state against an Agreed Location can only be
legitimate under international humanitarian law if it is against a bona fide U.S. military base,
facility, or installation that directly contributes to the military effort of the U.S. Moreover, the
third state's forces must take all measures to ensure that they have complied with the
principle of distinction (between combatants and non-combatants).
There is, then, ample legal protection for the Philippines under international law that would
ensure its territorial integrity and national security in the event an Agreed Location is
subjected to attack. As EDCA stands, it does not create the situation so feared by
petitioners - one in which the Philippines, while not participating in an armed conflict, would
be legitimately targeted by an enemy of the U.S.431
In the second place, this is a policy question about the wisdom of allowing the presence of
U.S. personnel within our territory and is therefore outside the scope of judicial review.
Evidently, the concept of giving foreign troops access to "agreed" locations, areas, or
facilities within the military base of another sovereign state is nothing new on the
international plane. In fact, this arrangement has been used as the framework for several
defense cooperation agreements, such as in the following:
1. 2006 U.S.-Bulgaria Defense Cooperation Agreement432
2. 2009 U.S.-Colombia Defense Cooperation Agreement433
3. 2009 U.S.-Poland Status of Forces Agreement434
4. 2014 U.S.-Australia Force Posture Agreement435
5. 2014 U.S.-Afghanistan Security and Defense Cooperation Agreement436
In all of these arrangements, the host state grants U.S. forces access to their military
bases.437 That access is without rental or similar costs to the U.S. 438 Further, U.S. forces
are allowed to undertake construction activities in, and make alterations and improvements
to, the agreed locations, facilities, or areas.439 As in EDCA, the host states retain ownership
and jurisdiction over the said bases.440
In fact, some of the host states in these agreements give specific military-related rights to
the U.S. For example, under Article IV(l) of the US.-Bulgaria Defense Cooperation
Agreement, "the United States forces x x x are authorized access to and may use agreed
facilities and areas x x x for staging and deploying of forces and materiel, with the purpose
of conducting x x x contingency operations and other missions, including those undertaken
in the framework of the North Atlantic Treaty." In some of these agreements, host countries
allow U.S. forces to construct facilities for the latters exclusive use. 441
Troop billeting, including construction of temporary structures, is nothing new. In Lim v.
Executive Secretary, the Court already upheld the Terms of Reference of Balikatan 02-
1, which authorized U.S. forces to set up "[t]emporary structures such as those for troop
billeting, classroom instruction and messing x x x during the Exercise." Similar provisions
are also in the Mutual Logistics Support Agreement of 2002 and 2007, which are essentially
executive agreements that implement the VFA, the MDT, and the 1953 Military Assistance
Agreement. These executive agreements similarly tackle the "reciprocal provision of logistic
support, supplies, and services,"442 which include "[b ]illeting, x x x operations support (and
construction and use of temporary structures incident to operations support), training
services, x x x storage services, x x x during an approved activity." 443 These logistic
supplies, support, and services include temporary use of "nonlethal items of military islands and insure its territorial integrity pursuant to a relationship built on the MDT and
equipment which are not designated as significant military equipment on the U.S. Munitions VFA.
List, during an approved activity."444 The first Mutual Logistics Support Agreement has
lapsed, while the second one has been extended until 2017 without any formal objection
8. Others issues and concerns raised
before this Court from the Senate or any of its members.

A point was raised during the oral arguments that the language of the MDT only refers to
The provisions in EDCA dealing with Agreed Locations are analogous to those in the
mutual help and defense in the Pacific area. 453 We believe that any discussion of the
aforementioned executive agreements. Instead of authorizing the building of temporary
activities to be undertaken under EDCA vis-a-vis the defense of areas beyond the Pacific is
structures as previous agreements have done, EDCA authorizes the U.S. to build
premature. We note that a proper petition on that issue must be filed before we rule
permanent structures or alter or improve existing ones for, and to be owned by, the
thereon. We also note that none of the petitions or memoranda has attempted to discuss
Philippines.445 EDCA is clear that the Philippines retains ownership of altered or improved
this issue, except only to theorize that the U.S. will not come to our aid in the event of an
facilities and newly constructed permanent or non-relocatable structures.446 Under EDCA,
attack outside of the Pacific. This is a matter of policy and is beyond the scope of this
U.S. forces will also be allowed to use facilities and areas for "training; x x x; support and
judicial review.
related activities; x x x; temporary accommodation of personnel; communications" and
agreed activities.447
In reference to the issue on telecommunications, suffice it to say that the initial impression
of the facility adverted to does appear to be one of those that require a public franchise by
Concerns on national security problems that arise from foreign military equipment being
way of congressional action under Section 11, Article XII of the Constitution. As
present in the Philippines must likewise be contextualized. Most significantly, the VFA
respondents submit, however, the system referred to in the agreement does not provide
already authorizes the presence of U.S. military equipment in the country. Article VII of the
telecommunications services to the public for compensation. 454 It is clear from Article VIl(2)
VFA already authorizes the U.S. to import into or acquire in the Philippines "equipment,
of EDCA that the telecommunication system is solely for the use of the U.S. and not the
materials, supplies, and other property" that will be used "in connection with activities"
public in general, and that this system will not interfere with that which local operators use.
contemplated therein. The same section also recognizes that "[t]itle to such property shall
Consequently, a public franchise is no longer necessary.
remain" with the US and that they have the discretion to "remove such property from the
Philippines at any time."
Additionally, the charge that EDCA allows nuclear weapons within Philippine territory is
entirely speculative. It is noteworthy that the agreement in fact specifies that the
There is nothing novel, either, in the EDCA provision on the prepositioning and storing of
prepositioned materiel shall not include nuclear weapons.455Petitioners argue that only
"defense equipment, supplies, and materiel,"448 since these are sanctioned in the VFA. In
prepositioned nuclear weapons are prohibited by EDCA; and that, therefore, the U.S. would
fact, the two countries have already entered into various implementing agreements in the
insidiously bring nuclear weapons to Philippine territory.456 The general prohibition on
past that are comparable to the present one. The Balikatan 02-1 Terms of Reference
nuclear weapons, whether prepositioned or not, is already expressed in the 1987
mentioned in Lim v. Executive Secretary specifically recognizes that Philippine and U.S.
Constitution.457 It would be unnecessary or superfluous to include all prohibitions already in
forces "may share x x x in the use of their resources, equipment and other assets." Both the
the Constitution or in the law through a document like EDCA.
2002 and 2007 Mutual Logistics Support Agreements speak of the provision of support and
services, including the "construction and use of temporary structures incident to operations
support" and "storage services" during approved activities.449 These logistic supplies, Finally, petitioners allege that EDCA creates a tax exemption, which under the law must
support, and services include the "temporary use of x x x nonlethal items of military originate from Congress. This allegation ignores jurisprudence on the government's
equipment which are not designated as significant military equipment on the U.S. Munitions assumption of tax liability. EDCA simply states that the taxes on the use of water,
List, during an approved activity."450Those activities include "combined exercises and electricity, and public utilities are for the account of the Philippine Government. 458 This
training, operations and other deployments" and "cooperative efforts, such as humanitarian provision creates a situation in which a contracting party assumes the tax liability of the
assistance, disaster relief and rescue operations, and maritime anti-pollution operations" other.459 In National Power Corporation v. Province of Quezon, we distinguished between
within or outside Philippine territory.451 Under EDCA, the equipment, supplies, and materiel enforceable and unenforceable stipulations on the assumption of tax liability. Afterwards,
that will be prepositioned at Agreed Locations include "humanitarian assistance and we concluded that an enforceable assumption of tax liability requires the party assuming
disaster relief equipment, supplies, and materiel. "452 Nuclear weapons are specifically the liability to have actual interest in the property taxed. 460 This rule applies to EDCA, since
excluded from the materiel that will be prepositioned. the Philippine Government stands to benefit not only from the structures to be built thereon
or improved, but also from the joint training with U.S. forces, disaster preparation, and the
preferential use of Philippine suppliers.461 Hence, the provision on the assumption of tax
Therefore, there is no basis to invalidate EDCA on fears that it increases the threat to our
liability does not constitute a tax exemption as petitioners have posited.
national security. If anything, EDCA increases the likelihood that, in an event requiring a
defensive response, the Philippines will be prepared alongside the U.S. to defend its
Additional issues were raised by petitioners, all relating principally to provisions already As it is, EDCA is not constitutionally infirm. As an executive agreement, it remains
sufficiently addressed above. This Court takes this occasion to emphasize that the consistent with existing laws and treaties that it purports to implement.
agreement has been construed herein as to absolutely disauthorize the violation of the
Constitution or any applicable statute. On the contrary, the applicability of Philippine law is
WHEREFORE, we hereby DISMISS the petitions.
explicit in EDCA.

EPILOGUE

The fear that EDCA is a reincarnation of the U.S. bases so zealously protested by noted
personalities in Philippine history arises not so much from xenophobia, but from a genuine
desire for self-determination, nationalism, and above all a commitment to ensure the
independence of the Philippine Republic from any foreign domination.

Mere fears, however, cannot curtail the exercise by the President of the Philippines of his
Constitutional prerogatives in respect of foreign affairs. They cannot cripple him when he
deems that additional security measures are made necessary by the times. As it stands,
the Philippines through the Department of Foreign Affairs has filed several diplomatic
protests against the actions of the People's Republic of China in the West Philippine
Sea;462initiated arbitration against that country under the United Nations Convention on the
Law of the Sea;463 is in the process of negotiations with the Moro Islamic Liberation Front
for peace in Southern Philippines,464 which is the subject of a current case before this
Court; and faces increasing incidents of kidnappings of Filipinos and foreigners allegedly by
the Abu Sayyaf or the New People's Army.465 The Philippine military is conducting reforms
that seek to ensure the security and safety of the nation in the years to come. 466 In the
future, the Philippines must navigate a world in which armed forces fight with increasing
sophistication in both strategy and technology, while employing asymmetric warfare and
remote weapons.

Additionally, our country is fighting a most terrifying enemy: the backlash of Mother Nature.
The Philippines is one of the countries most directly affected and damaged by climate
change. It is no coincidence that the record-setting tropical cyclone Yolanda (internationally
named Haiyan), one of the most devastating forces of nature the world has ever seen hit
the Philippines on 8 November 2013 and killed at least 6,000 people.467 This necessitated a
massive rehabilitation project.468 In the aftermath, the U.S. military was among the first to
extend help and support to the Philippines.

That calamity brought out the best in the Filipinos as thousands upon thousands
volunteered their help, their wealth, and their prayers to those affected. It also brought to
the fore the value of having friends in the international community.

In order to keep the peace in its archipelago in this region of the world, and to sustain itself
at the same time against the destructive forces of nature, the Philippines will need friends.
Who they are, and what form the friendships will take, are for the President to decide. The
only restriction is what the Constitution itself expressly prohibits. It appears that this
overarching concern for balancing constitutional requirements against the dictates of
necessity was what led to EDCA.
LILIA B. ADA, LUZ B. ADANZA, FLORA C. BA YLON, REMO BA YLON, JOSE BA YLON,
ERIC BA YLON, FLORENTINO BA YLON, and MA. RUBY BA YLON, Petitioners, vs.
FLORANTE BA YLON, Respondent.
Before this Court is a petition for review on certiorari under Rule 45 of the Rules of Court
seeking to annul and set aside the Decision1 dated October 26, 2007 rendered by the Court
of Appeals (CA) in CA-G.R. CV No. 01746. The assailed decision partially reversed and set
aside the Decision2 dated October 20, 2005 issued ~y the Regional Trial Court (RTC), Tan
jay City, Negros Oriental, Branch 43 in Civil Case No. 11657.
The Antecedent Facts
This case involves the estate of spouses Florentino Baylon and Maximina Elnas Baylon
(Spouses Baylon) who died on November 7, 1961 and May 5, 1974, respectively. 3 At the
time of their death, Spouses Baylon were survived by their legitimate children, namely, Rita
Baylon (Rita), Victoria Baylon (Victoria), Dolores Baylon (Dolores), Panfila Gomez (Panfila),
Ramon Baylon (Ramon) and herein petitioner Lilia B. Ada (Lilia).
Dolores died intestate and without issue on August 4, 1976. Victoria died on November 11,
1981 and was survived by her daughter, herein petitioner Luz B. Adanza. Ramon died
intestate on July 8, 1989 and was survived by herein respondent Florante Baylon
(Florante), his child from his first marriage, as well as by petitioner Flora Baylon, his second
wife, and their legitimate children, namely, Ramon, Jr. and herein petitioners Remo, Jose,
Eric, Florentino and Ma. Ruby, all surnamed Baylon.
On July 3, 1996, the petitioners filed with the RTC a Complaint 4 for partition, accounting and
damages against Florante, Rita and Panfila. They alleged therein that Spouses Baylon,
during their lifetime, owned 43 parcels of land5all situated in Negros Oriental. After the
death of Spouses Baylon, they claimed that Rita took possession of the said parcels of land
and appropriated for herself the income from the same. Using the income produced by the
said parcels of land, Rita allegedly purchased two parcels of land, Lot No. 47096 and half of
Lot No. 4706,7 situated in Canda-uay, Dumaguete City. The petitioners averred that Rita
refused to effect a partition of the said parcels of land.
8
In their Answer, Florante, Rita and Panfila asserted that they and the petitioners co-owned
229 out of the 43 parcels of land mentioned in the latters complaint, whereas Rita actually
owned 10 parcels of land10 out of the 43 parcels which the petitioners sought to partition,
while the remaining 11 parcels of land are separately owned by Petra Cafino
Adanza,11 Florante,12 Meliton Adalia,13 Consorcia Adanza,14 Lilia15 and Santiago
Mendez.16 Further, they claimed that Lot No. 4709 and half of Lot No. 4706 were acquired
by Rita using her own money. They denied that Rita appropriated solely for herself the
income of the estate of Spouses Baylon, and expressed no objection to the partition of the
estate of Spouses Baylon, but only with respect to the co-owned parcels of land.
During the pendency of the case, Rita, through a Deed of Donation dated July 6, 1997,
conveyed Lot No. 4709 and half of Lot No. 4706 to Florante. On July 16, 2000, Rita died
intestate and without any issue. Thereafter, learning of the said donation inter vivos in favor
of Florante, the petitioners filed a Supplemental Pleading17 dated February 6, 2002, praying
that the said donation in favor of the respondent be rescinded in accordance with Article
1381(4) of the Civil Code. They further alleged that Rita was already sick and very weak
when the said Deed of Donation was supposedly executed and, thus, could not have validly
given her consent thereto.
Florante and Panfila opposed the rescission of the said donation, asserting that Article
1381(4) of the Civil Code applies only when there is already a prior judicial decree on who
between the contending parties actually owned the properties under litigation. 18
The RTC Decision
On October 20, 2005, the RTC rendered a Decision,19 the decretal portion of which reads:
Wherefore judgment is hereby rendered:
(1) declaring the existence of co-ownership over parcels nos. 1, 2, 3, 5, 7, 10, 13,
14, 16, 17, 18, 26, 29, 30, 33, 34, 35, 36, 40 and 41 described in the complaint;
(2) directing that the above mentioned parcels of land be partitioned among the
heirs of Florentino Baylon and Maximina Baylon;
(3) declaring a co-ownership on the properties of Rita Baylon namely parcels
no[s]. 6, 11, 12, 20, 24, 27, 31, 32, 39 and 42 and directing that it shall be
partitioned among her heirs who are the plaintiffs and defendant in this case;
(4) declaring the donation inter vivos rescinded without prejudice to the share of
Florante Baylon to the estate of Rita Baylon and directing that parcels nos. 1 and
2 paragraph V of the complaint be included in the division of the property as of
Rita Baylon among her heirs, the parties in this case;
(5) excluding from the co-ownership parcels nos. 20, 21, 22, 9, 43, 4, 8, 19 and
37.
Considering that the parties failed to settle this case amicably and could not agree on the
partition, the parties are directed to nominate a representative to act as commissioner to
make the partition. He shall immediately take [his] oath of office upon [his] appointment.
The commissioner shall make a report of all the proceedings as to the partition within fifteen
(15) days from the completion of this partition. The parties are given ten (10) days within
which to object to the report after which the Court shall act on the commissioner report.
SO ORDERED.20 (Emphasis ours)
The RTC held that the death of Rita during the pendency of the case, having died intestate SO ORDERED.25
and without any issue, had rendered the issue of ownership insofar as parcels of land
which she claims as her own moot since the parties below are the heirs to her estate. Thus,
The CA held that before the petitioners may file an action for rescission, they must first
the RTC regarded Rita as the owner of the said 10 parcels of land and, accordingly,
obtain a favorable judicial ruling that Lot No. 4709 and half of Lot No. 4706 actually
directed that the same be partitioned among her heirs. Nevertheless, the RTC rescinded
belonged to the estate of Spouses Baylon and not to Rita. Until then, the CA asserted, an
the donation inter vivos of Lot No. 4709 and half of Lot No. 4706 in favor of Florante. In
action for rescission is premature. Further, the CA ruled that the petitioners action for
rescinding the said donation inter vivos, the RTC explained that:
rescission cannot be joined with their action for partition, accounting and damages through
a mere supplemental pleading. Thus:
However, with respect to lot nos. 4709 and 4706 which [Rita] had conveyed to Florante
Baylon by way of donation inter vivos, the plaintiffs in their supplemental pleadings (sic)
If Lot No. 4709 and half of Lot No. 4706 belonged to the Spouses estate, then Rita
assailed the same to be rescissible on the ground that it was entered into by the defendant
Baylons donation thereof in favor of Florante Baylon, in excess of her undivided share
Rita Baylon without the knowledge and approval of the litigants [or] of competent judicial
therein as co-heir, is void. Surely, she could not have validly disposed of something she did
authority. The subject parcels of lands are involved in the case for which plaintiffs have
not own. In such a case, an action for rescission of the donation may, therefore, prosper.
asked the Court to partition the same among the heirs of Florentino Baylon and Maximina
Elnas.
If the lots, however, are found to have belonged exclusively to Rita Baylon, during her
lifetime, her donation thereof in favor of Florante Baylon is valid. For then, she merely
Clearly, the donation inter vivos in favor of Florante Baylon was executed to prejudice the
exercised her ownership right to dispose of what legally belonged to her. Upon her death,
plaintiffs right to succeed to the estate of Rita Baylon in case of death considering that as
the lots no longer form part of her estate as their ownership now pertains to Florante
testified by Florante Baylon, Rita Baylon was very weak and he tried to give her vitamins x
Baylon. On this score, an action for rescission against such donation will not prosper. x x x.
x x. The donation inter vivos executed by Rita Baylon in favor of Florante Baylon is
rescissible for the reason that it refers to the parcels of land in litigation x x x without the
knowledge and approval of the plaintiffs or of this Court. However, the rescission shall not Verily, before plaintiffs-appellees may file an action for rescission, they must first obtain a
affect the share of Florante Baylon to the estate of Rita Baylon. 21 favorable judicial ruling that lot no. 4709 and half of lot no. 4706 actually belonged to the
estate of Spouses Florentino and Maximina Baylon, and not to Rita Baylon during her
lifetime. Until then, an action for rescission is premature. For this matter, the applicability of
Florante sought reconsideration of the Decision dated October 20, 2005 of the RTC insofar
Article 1381, paragraph 4, of the New Civil Code must likewise await the trial courts
as it rescinded the donation of Lot No. 4709 and half of Lot No. 4706 in his favor. 22 He
resolution of the issue of ownership.
asserted that, at the time of Ritas death on July 16, 2000, Lot No. 4709 and half of Lot No.
4706 were no longer part of her estate as the same had already been conveyed to him
through a donation inter vivos three years earlier. Thus, Florante maintained that Lot No. Be that as it may, an action for rescission should be filed by the parties concerned
4709 and half of Lot No. 4706 should not be included in the properties that should be independent of the proceedings below. The first cannot simply be lumped up with the
partitioned among the heirs of Rita. second through a mere supplemental pleading.26 (Citation omitted)

On July 28, 2006, the RTC issued an Order23 which denied the motion for reconsideration The petitioners sought reconsideration27 of the Decision dated October 26, 2007 but it was
filed by Florante. denied by the CA in its Resolution28 dated March 6, 2008.

The CA Decision Hence, this petition.

On appeal, the CA rendered a Decision24 dated October 26, 2007, the dispositive portion of
which reads:
WHEREFORE, the Decision dated October 20, 2005 and Order dated July 28, 2006
are REVERSEDand SET ASIDE insofar as they decreed the rescission of the Deed of
Donation dated July 6, 1997 and the inclusion of lot no. 4709 and half of lot no. 4706 in the
estate of Rita Baylon. The case is REMANDED to the trial court for the determination of
ownership of lot no. 4709 and half of lot no. 4706.
Issue
The lone issue to be resolved by this Court is whether the CA erred in ruling that the
donation inter vivos of Lot No. 4709 and half of Lot No. 4706 in favor of Florante may only
be rescinded if there is already a judicial determination that the same actually belonged to
the estate of Spouses Baylon.
The Courts Ruling
 The petition is partly meritorious.
Procedural Matters
Before resolving the lone substantive issue in the instant case, this Court deems it proper to
address certain procedural matters that need to be threshed out which, by laxity or
otherwise, were not raised by the parties herein.
Misjoinder of Causes of Action
The complaint filed by the petitioners with the RTC involves two separate, distinct and
independent actions partition and rescission. First, the petitioners raised the refusal of
their co-heirs, Florante, Rita and Panfila, to partition the properties which they inherited
from Spouses Baylon. Second, in their supplemental pleading, the petitioners assailed the
donation inter vivos of Lot No. 4709 and half of Lot No. 4706 made by Rita in favor of
Florante pendente lite.
in the determination of the presence of requisite elements of each particular cause of
action.32
A misjoined cause of action, if not severed upon motion of a party or by the court sua
sponte, may be adjudicated by the court together with the other causes of action.
Nevertheless, misjoinder of causes of action is not a ground for dismissal. Indeed, the
courts have the power, acting upon the motion of a party to the case or sua sponte, to order
the severance of the misjoined cause of action to be proceeded with separately.33 However,
if there is no objection to the improper joinder or the court did not motu proprio direct a
severance, then there exists no bar in the simultaneous adjudication of all the erroneously
joined causes of action. On this score, our disquisition in Republic of the Philippines v.
Herbieto34 is instructive, viz:
This Court, however, disagrees with petitioner Republic in this regard. This procedural
lapse committed by the respondents should not affect the jurisdiction of the MTC to
proceed with and hear their application for registration of the Subject Lots.

The actions of partition and rescission cannot be joined in a single action.

xxxx

By a joinder of actions, or more properly, a joinder of causes of action is meant the uniting
Considering every application for land registration filed in strict accordance with the
of two or more demands or rights of action in one action, the statement of more than one
Property Registration Decree as a single cause of action, then the defect in the joint
cause of action in a declaration. It is the union of two or more civil causes of action, each of
application for registration filed by the respondents with the MTC constitutes a misjoinder of
which could be made the basis of a separate suit, in the same complaint, declaration or
causes of action and parties. Instead of a single or joint application for registration,
petition. A plaintiff may under certain circumstances join several distinct demands,
respondents Jeremias and David, more appropriately, should have filed separate
controversies or rights of action in one declaration, complaint or petition. 29
applications for registration of Lots No. 8422 and 8423, respectively.

The objectives of the rule or provision are to avoid a multiplicity of suits where the same
Misjoinder of causes of action and parties do not involve a question of jurisdiction of the
parties and subject matter are to be dealt with by effecting in one action a complete
court to hear and proceed with the case. They are not even accepted grounds for dismissal
determination of all matters in controversy and litigation between the parties involving one
thereof. Instead, under the Rules of Court, the misjoinder of causes of action and parties
subject matter, and to expedite the disposition of litigation at minimum cost. The provision
involve an implied admission of the courts jurisdiction. It acknowledges the power of the
should be construed so as to avoid such multiplicity, where possible, without prejudice to
court, acting upon the motion of a party to the case or on its own initiative, to order the
the rights of the litigants.30
severance of the misjoined cause of action, to be proceeded with separately (in case of
misjoinder of causes of action); and/or the dropping of a party and the severance of any
Nevertheless, while parties to an action may assert in one pleading, in the alternative or claim against said misjoined party, also to be proceeded with separately (in case of
otherwise, as many causes of action as they may have against an opposing party, such misjoinder of parties).35 (Citations omitted)
joinder of causes of action is subject to the condition, inter alia, that the joinder shall not
include special civil actions governed by special rules.31
It should be emphasized that the foregoing rule only applies if the court trying the case has
jurisdiction over all of the causes of action therein notwithstanding the misjoinder of the
Here, there was a misjoinder of causes of action. The action for partition filed by the same. If the court trying the case has no jurisdiction over a misjoined cause of action, then
petitioners could not be joined with the action for the rescission of the said donation inter such misjoined cause of action has to be severed from the other causes of action, and if not
vivos in favor of Florante. Lest it be overlooked, an action for partition is a special civil so severed, any adjudication rendered by the court with respect to the same would be a
action governed by Rule 69 of the Rules of Court while an action for rescission is an nullity.
ordinary civil action governed by the ordinary rules of civil procedure. The variance in the
procedure in the special civil action of partition and in the ordinary civil action of rescission
Here, Florante posed no objection, and neither did the RTC direct the severance of the
precludes their joinder in one complaint or their being tried in a single proceeding to avoid
petitioners action for rescission from their action for partition. While this may be a patent
confusion in determining what rules shall govern the conduct of the proceedings as well as
omission on the part of the RTC, this does not constitute a ground to assail the validity and
correctness of its decision. The RTC validly adjudicated the issues raised in the actions for
partition and rescission filed by the petitioners.
Asserting a New Cause of Action in a Supplemental Pleading
In its Decision dated October 26, 2007, the CA pointed out that the said action for
rescission should have been filed by the petitioners independently of the proceedings in the
action for partition. It opined that the action for rescission could not be lumped up with the
action for partition through a mere supplemental pleading.
We do not agree.
A supplemental pleading may raise a new cause of action as long as it has some relation to
the original cause of action set forth in the original complaint.
Section 6, Rule 10 of the Rules of Court reads:
Sec. 6. Supplemental Pleadings. Upon motion of a party the court may, upon reasonable
notice and upon such terms as are just, permit him to serve a supplemental pleading
setting forth transactions, occurrences or events which have happened since the date of
the pleading sought to be supplemented. The adverse party may plead thereto within ten
(10) days from notice of the order admitting the supplemental pleading.
In Young v. Spouses Sy,36 this Court had the opportunity to elucidate on the purpose of a
supplemental pleading. Thus:
As its very name denotes, a supplemental pleading only serves to bolster or add something
to the primary pleading. A supplement exists side by side with the original. It does not
replace that which it supplements. Moreover, a supplemental pleading assumes that the
original pleading is to stand and that the issues joined with the original pleading remained
an issue to be tried in the action. It is but a continuation of the complaint. Its usual office is
to set up new facts which justify, enlarge or change the kind of relief with respect to the
same subject matter as the controversy referred to in the original complaint.
The purpose of the supplemental pleading is to bring into the records new facts which will
enlarge or change the kind of relief to which the plaintiff is entitled; hence, any
supplemental facts which further develop the original right of action, or extend to vary the
relief, are available by way of supplemental complaint even though they themselves
constitute a right of action.37 (Citations omitted and emphasis ours)
Thus, a supplemental pleading may properly allege transactions, occurrences or events
which had transpired after the filing of the pleading sought to be supplemented, even if the
said supplemental facts constitute another cause of action.
Admittedly, in Leobrera v. Court of Appeals,38 we held that a supplemental pleading must
be based on matters arising subsequent to the original pleading related to the claim or
defense presented therein, and founded on the same cause of action. We further stressed
therein that a supplemental pleading may not be used to try a new cause of action.
However, in Planters Development Bank v. LZK Holdings and Development Corp.,39 we
clarified that, while a matter stated in a supplemental complaint should have some relation
to the cause of action set forth in the original pleading, the fact that the supplemental
pleading technically states a new cause of action should not be a bar to its allowance but
only a matter that may be considered by the court in the exercise of its discretion. In such
cases, we stressed that a broad definition of "cause of action" should be applied.
Here, the issue as to the validity of the donation inter vivos of Lot No. 4709 and half of Lot
No. 4706 made by Rita in favor of Florante is a new cause of action that occurred after the
filing of the original complaint. However, the petitioners prayer for the rescission of the said
donation inter vivos in their supplemental pleading is germane to, and is in fact, intertwined
with the cause of action in the partition case. Lot No. 4709 and half of Lot No. 4706 are
included among the properties that were sought to be partitioned.
The petitioners supplemental pleading merely amplified the original cause of action, on
account of the gratuitous conveyance of Lot No. 4709 and half of Lot No. 4706 after the
filing of the original complaint and prayed for additional reliefs, i.e., rescission. Indeed, the
petitioners claim that the said lots form part of the estate of Spouses Baylon, but cannot be
partitioned unless the gratuitous conveyance of the same is rescinded. Thus, the principal
issue raised by the petitioners in their original complaint remained the same.
Main Issue: Propriety of Rescission
After having threshed out the procedural matters, we now proceed to adjudicate the
substantial issue presented by the instant petition.
The petitioners assert that the CA erred in remanding the case to the RTC for the
determination of ownership of Lot No. 4709 and half of Lot No. 4706. They maintain that the
RTC aptly rescinded the said donation inter vivos of Lot No. 4709 and half of Lot No. 4706
pursuant to Article 1381(4) of the Civil Code.
In his Comment,40 Florante asserts that before the petitioners may file an action for
rescission, they must first obtain a favorable judicial ruling that Lot No. 4709 and half of Lot
No. 4706 actually belonged to the estate of Spouses Baylon. Until then, Florante avers that
an action for rescission would be premature.
The petitioners contentions are well-taken.
The resolution of the instant dispute is fundamentally contingent upon a determination of
whether the donation inter vivos of Lot No. 4709 and half of Lot No. 4706 in favor of
Florante may be rescinded pursuant to Article 1381(4) of the Civil Code on the ground that
the same was made during the pendency of the action for partition with the RTC.
Rescission is a remedy to address the damage or injury caused to the contracting parties or
third persons.
Rescission is a remedy granted by law to the contracting parties and even to third persons,
to secure the reparation of damages caused to them by a contract, even if it should be
valid, by means of the restoration of things to their condition at the moment prior to the
celebration of said contract.41 It is a remedy to make ineffective a contract, validly entered
into and therefore obligatory under normal conditions, by reason of external causes
resulting in a pecuniary prejudice to one of the contracting parties or their creditors. 42
Contracts which are rescissible are valid contracts having all the essential requisites of a
contract, but by reason of injury or damage caused to either of the parties therein or to third
persons are considered defective and, thus, may be rescinded.
The kinds of rescissible contracts, according to the reason for their susceptibility to
rescission, are the following: first, those which are rescissible because of lesion or
prejudice;43 second, those which are rescissible on account of fraud or bad faith; 44 and third,
those which, by special provisions of law,45 are susceptible to rescission.46
Contracts which refer to things subject of litigation is rescissible pursuant to Article 1381(4)
of the Civil Code.
Contracts which are rescissible due to fraud or bad faith include those which involve things
under litigation, if they have been entered into by the defendant without the knowledge and
approval of the litigants or of competent judicial authority. Thus, Article 1381(4) of the Civil
Code provides:
Art. 1381. The following contracts are rescissible:
xxxx
(4) Those which refer to things under litigation if they have been entered into by the
defendant without the knowledge and approval of the litigants or of competent judicial
authority.
The rescission of a contract under Article 1381(4) of the Civil Code only requires the
concurrence of the following: first, the defendant, during the pendency of the case, enters
into a contract which refers to the thing subject of litigation; and second, the said contract
was entered into without the knowledge and approval of the litigants or of a competent
judicial authority. As long as the foregoing requisites concur, it becomes the duty of the
court to order the rescission of the said contract.
The reason for this is simple. Article 1381(4) seeks to remedy the presence of bad faith
among the parties to a case and/or any fraudulent act which they may commit with respect
to the thing subject of litigation.
When a thing is the subject of a judicial controversy, it should ultimately be bound by
whatever disposition the court shall render. The parties to the case are therefore expected,
in deference to the courts exercise of jurisdiction over the case, to refrain from doing acts
which would dissipate or debase the thing subject of the litigation or otherwise render the
impending decision therein ineffectual.
There is, then, a restriction on the disposition by the parties of the thing that is the subject
of the litigation. Article 1381(4) of the Civil Code requires that any contract entered into by a
defendant in a case which refers to things under litigation should be with the knowledge
and approval of the litigants or of a competent judicial authority.
Further, any disposition of the thing subject of litigation or any act which tends to render
inutile the courts impending disposition in such case, sans the knowledge and approval of
the litigants or of the court, is unmistakably and irrefutably indicative of bad faith. Such acts
undermine the authority of the court to lay down the respective rights of the parties in a
case relative to the thing subject of litigation and bind them to such determination.
It should be stressed, though, that the defendant in such a case is not absolutely proscribed
from entering into a contract which refer to things under litigation. If, for instance, a
defendant enters into a contract which conveys the thing under litigation during the
pendency of the case, the conveyance would be valid, there being no definite disposition
yet coming from the court with respect to the thing subject of litigation. After all,
notwithstanding that the subject thereof is a thing under litigation, such conveyance is but
merely an exercise of ownership.
This is true even if the defendant effected the conveyance without the knowledge and
approval of the litigants or of a competent judicial authority. The absence of such
knowledge or approval would not precipitate the invalidity of an otherwise valid contract.
Nevertheless, such contract, though considered valid, may be rescinded at the instance of
the other litigants pursuant to Article 1381(4) of the Civil Code.
Here, contrary to the CAs disposition, the RTC aptly ordered the rescission of the donation
inter vivos of Lot No. 4709 and half of Lot No. 4706 in favor of Florante. The petitioners had
sufficiently established the presence of the requisites for the rescission of a contract
pursuant to Article 1381(4) of the Civil Code. It is undisputed that, at the time they were
gratuitously conveyed by Rita, Lot No. 4709 and half of Lot No. 4706 are among the
properties that were the subject of the partition case then pending with the RTC. It is also
undisputed that Rita, then one of the defendants in the partition case with the RTC, did not
inform nor sought the approval from the petitioners or of the RTC with regard to the
donation inter vivos of the said parcels of land to Florante.
Although the gratuitous conveyance of the said parcels of land in favor of Florante was
valid, the donation inter vivos of the same being merely an exercise of ownership, Ritas
failure to inform and seek the approval of the petitioners or the RTC regarding the
conveyance gave the petitioners the right to have the said donation rescinded pursuant to
Article 1381(4) of the Civil Code.
Rescission under Article 1381(4) of the Civil Code is not preconditioned upon the judicial
determination as to the ownership of the thing subject of litigation.
In this regard, we also find the assertion that rescission may only be had after the RTC had
finally determined that the parcels of land belonged to the estate of Spouses Baylon
intrinsically amiss. The petitioners right to institute the action for rescission pursuant to
Article 1381(4) of the Civil Code is not preconditioned upon the RTCs determination as to
the ownership of the said parcels of land.
It bears stressing that the right to ask for the rescission of a contract under Article 1381(4)
of the Civil Code is not contingent upon the final determination of the ownership of the thing
subject of litigation. The primordial purpose of Article 1381(4) of the Civil Code is to secure
the possible effectivity of the impending judgment by a court with respect to the thing
subject of litigation. It seeks to protect the binding effect of a courts impending adjudication
vis--vis the thing subject of litigation regardless of which among the contending claims
therein would subsequently be upheld. Accordingly, a definitive judicial determination with
respect to the thing subject of litigation is not a condition sine qua non before the rescissory
action contemplated under Article 1381(4) of the Civil Code may be instituted.
Moreover, conceding that the right to bring the rescissory action pursuant to Article 1381(4)
of the Civil Code is preconditioned upon a judicial determination with regard to the thing
subject litigation, this would only bring about the very predicament that the said provision of
law seeks to obviate. Assuming arguendo that a rescissory action under Article 1381(4) of
the Civil Code could only be instituted after the dispute with respect to the thing subject of
litigation is judicially determined, there is the possibility that the same may had already
been conveyed to third persons acting in good faith, rendering any judicial determination
with regard to the thing subject of litigation illusory. Surely, this paradoxical eventuality is
not what the law had envisioned.
Even if the donation inter vivos is validly rescinded, a determination as to the ownership of
the subjectparcels of land is still necessary.
of land is unnecessary since, in any case, the said parcels of land would ultimately be
adjudicated to the parties in the proceedings before it.
We do not agree.
Admittedly, whoever may be adjudicated as the owner of Lot No. 4709 and half of Lot No.
4706, be it Rita or Spouses Baylon, the same would ultimately be transmitted to the parties
in the proceedings before the RTC as they are the only surviving heirs of both Spouses
Baylon and Rita. However, the RTC failed to realize that a definitive adjudication as to the
ownership of Lot No. 4709 and half of Lot No. 4706 is essential in this case as it affects the
authority of the RTC to direct the partition of the said parcels of land. Simply put, the RTC
cannot properly direct the partition of Lot No. 4709 and half of Lot No. 4706 until and unless
it determines that the said parcels of land indeed form part of the estate of Spouses Baylon.
It should be stressed that the partition proceedings before the RTC only covers the
properties co-owned by the parties therein in their respective capacity as the surviving heirs
of Spouses Baylon. Hence, the authority of the RTC to issue an order of partition in the
proceedings before it only affects those properties which actually belonged to the estate of
Spouses Baylon.
In this regard, if Lot No. 4709 and half of Lot No. 4706, as unwaveringly claimed by
Florante, are indeed exclusively owned by Rita, then the said parcels of land may not be
partitioned simultaneously with the other properties subject of the partition case before the
RTC. In such case, although the parties in the case before the RTC are still co-owners of
the said parcels of land, the RTC would not have the authority to direct the partition of the
said parcels of land as the proceedings before it is only concerned with the estate of
Spouses Baylon.
WHEREFORE, in consideration of the foregoing disquisitions, the petition is PARTIALLY
GRANTED. The Decision dated October 26, 2007 issued by the Court of Appeals in CA-
G.R. CV No. 01746 is MODIFIED in that the Decision dated October 20, 2005 issued by the
Regional Trial Court, Tanjay City, Negros Oriental, Branch 43 in Civil Case No. 11657,
insofar as it decreed the rescission of the Deed of Donation dated July 6, 1997 is
hereby REINSTATED. The case is REMANDED to the trial court for the determination of
the ownership of Lot No. 4709 and half of Lot No. 4706 in accordance with this Decision.

Having established that the RTC had aptly ordered the rescission of the said donation inter
vivos in favor of Florante, the issue that has to be resolved by this Court is whether there is
still a need to determine the ownership of Lot No. 4709 and half of Lot No. 4706.

In opting not to make a determination as to the ownership of Lot No. 4709 and half of Lot
No. 4706, the RTC reasoned that the parties in the proceedings before it constitute not only
the surviving heirs of Spouses Baylon but the surviving heirs of Rita as well. As intimated
earlier, Rita died intestate during the pendency of the proceedings with the RTC without
any issue, leaving the parties in the proceedings before the RTC as her surviving heirs.
Thus, the RTC insinuated, a definitive determination as to the ownership of the said parcels
THE DIOCESE OF BACOLOD, REPRESENTED BY THE MOST REV. BISHOP VICENTE
M. NAVARRA and THE BISHOP HIMSELF IN HIS PERSONAL CAPACITY, Petitioners,
vs. COMMISSION ON ELECTIONS AND THE ELECTION OFFICER OF BACOLOD CITY,
ATTY. MAVIL V. MAJARUCON, Respondents.
"The Philippines is a democratic and republican State. Sovereignty resides in the people
and all government authority emanates from them." Article II, Section 1, Constitution
All governmental authority emanates from our people. No unreasonable restrictions of the
fundamental and preferred right to expression of the electorate during political contests no
matter how seemingly benign will be tolerated.
This case defines the extent that our people may shape the debates during elections. It is
significant and of first impression. We are asked to decide whether the Commission on
Elections (COMELEC) has the competence to limit expressions made by the citizens
who are not candidates during elections.
Before us is a special civil action for certiorari and prohibition with application for
preliminary injunction and temporary restraining order1 under Rule 65 of the Rules of Court
seeking to nullify COMELECs Notice to Remove Campaign Materials 2 dated February 22,
2013 and letter3 issued on February 27, 2013.
The facts are not disputed.
On February 21, 2013, petitioners posted two (2) tarpaulins within a private compound
housing the San Sebastian Cathedral of Bacolod. Each tarpaulin was approximately six feet
(6') by ten feet (10') in size. They were posted on the front walls of the cathedral within
public view. The first tarpaulin contains the message "IBASURA RH Law" referring to the
Reproductive Health Law of 2012 or Republic Act No. 10354. The second tarpaulin is the
subject of the present case.4 This tarpaulin contains the heading "Conscience Vote" and
lists candidates as either "(Anti-RH) Team Buhay" with a check mark, or "(Pro-RH) Team
Patay" with an "X" mark.5 The electoral candidates were classified according to their vote
on the adoption of Republic Act No. 10354, otherwise known as the RH Law.6Those who
voted for the passing of the law were classified by petitioners as comprising "Team Patay,"
while those who voted against it form "Team Buhay":7
TEAM BUHAY TEAM PATAY
Estrada, JV Angara, Juan Edgardo
Honasan, Gregorio Casio, Teddy
Magsaysay, Mitos Cayetano, Alan Peter
Pimentel, Koko Enrile, Jackie
Trillanes, Antonio Escudero, Francis
Villar, Cynthia Hontiveros, Risa
Party List Buhay Legarda, Loren
Party List Ang Pamilya Party List Gabriela
Party List Akbayan
Party List Bayan Muna
Party List Anak Pawis
During oral arguments, respondents conceded that the tarpaulin was neither sponsored nor
paid for by any candidate. Petitioners also conceded that the tarpaulin contains names
ofcandidates for the 2013 elections, but not of politicians who helped in the passage of the
RH Law but were not candidates for that election.
On February 22, 2013, respondent Atty. Mavil V. Majarucon, in her capacity as Election
Officer of Bacolod City, issued a Notice to Remove Campaign Materials 8 addressed to
petitioner Most Rev. Bishop Vicente M. Navarra. The election officer ordered the tarpaulins
removal within three (3) days from receipt for being oversized. COMELEC Resolution No.
9615 provides for the size requirement of two feet (2) by three feet (3).9
On February 25, 2013, petitioners replied10 requesting, among others, that (1) petitioner
Bishop be given a definite ruling by COMELEC Law Department regarding the tarpaulin;
and (2) pending this opinion and the availment of legal remedies, the tarpaulin be allowed
to remain.11
On February 27, 2013, COMELEC Law Department issued a letter12 ordering the
immediate removal of the tarpaulin; otherwise, it will be constrained to file an election
offense against petitioners. The letter of COMELEC Law Department was silenton the
remedies available to petitioners. The letter provides as follows:
Dear Bishop Navarra:
It has reached this Office that our Election Officer for this City, Atty. Mavil Majarucon, had
already given you notice on February 22, 2013 as regards the election propaganda material
posted on the church vicinity promoting for or against the candidates and party-list groups
with the following names and messages, particularly described as follows:
Material size : six feet (6) by ten feet (10)
Description : FULL COLOR TARPAULIN
Image of : SEE ATTACHED PICTURES
 Message : CONSCIENCE VOTE (ANTI RH) TEAM Article IX-C, Section 4 of the Constitution. Hence, respondents claim that the issuances
ordering its removal for being oversized are valid and constitutional. 18
BUHAY; (PRO RH) TEAM PATAY
During the hearing held on March 19, 2013, the parties were directed to file their respective
memoranda within 10 days or by April 1, 2013, taking into consideration the intervening
Location : POSTED ON THE CHURCH VICINITY
holidays.19
OF THE DIOCESE OF BACOLOD CITY

The issues, which also served as guide for the oral arguments, are: 20
The three (3) day notice expired on February 25, 2013.

I.
Considering that the above-mentioned material is found to be in violation of Comelec
Resolution No. 9615 promulgated on January 15, 2013 particularly on the size (even with
the subsequent division of the said tarpaulin into two), as the lawful size for election WHETHER THE 22 FEBRUARY 2013 NOTICE/ORDER BY ELECTION OFFICER
propaganda material is only two feet (2) by three feet (3), please order/cause the MAJARUCON AND THE 27 FEBRUARY 2013 ORDER BY THE COMELEC LAW
immediate removal of said election propaganda material, otherwise, we shall be DEPARTMENT ARE CONSIDERED JUDGMENTS/FINAL ORDERS/RESOLUTIONS OF
constrained to file an election offense case against you. THE COMELEC WHICH WOULD WARRANT A REVIEW OF THIS COURT VIA RULE 65
PETITION[;]
We pray that the Catholic Church will be the first institution to help the Commission on
Elections inensuring the conduct of peaceful, orderly, honest and credible elections. A. WHETHER PETITIONERS VIOLATED THE HIERARCHY OF
COURTS DOCTRINE AND JURISPRUDENTIAL RULES
GOVERNING APPEALS FROM COMELEC DECISIONS;
Thank you and God Bless!

B. ASSUMING ARGUENDO THAT THE AFOREMENTIONED

[signed]
ORDERS ARE NOT CONSIDERED JUDGMENTS/FINAL
ATTY. ESMERALDA AMORA-LADRA
ORDERS/RESOLUTIONS OF THE COMELEC, WHETHER THERE
ARE EXCEPTIONAL CIRCUMSTANCES WHICH WOULD ALLOW
Director IV13 THIS COURT TO TAKE COGNIZANCE OF THE CASE[;]

Concerned about the imminent threatof prosecution for their exercise of free speech, II.
petitioners initiated this case through this petition for certiorari and prohibition with
application for preliminary injunction and temporary restraining order.14 They question
WHETHER IT IS RELEVANT TODETERMINE WHETHER THE TARPAULINS ARE
respondents notice dated February 22, 2013 and letter issued on February 27, 2013. They
"POLITICAL ADVERTISEMENT" OR "ELECTION PROPAGANDA" CONSIDERING THAT
pray that: (1) the petition be given due course; (2) a temporary restraining order (TRO)
PETITIONER IS NOT A POLITICAL CANDIDATE[;]
and/or a writ of preliminary injunction be issued restraining respondents from further
proceeding in enforcing their orders for the removal of the Team Patay tarpaulin; and (3)
after notice and hearing, a decision be rendered declaring the questioned orders of III.
respondents as unconstitutional and void, and permanently restraining respondents from
enforcing them or any other similar order.15
WHETHER THE TARPAULINS ARE A FORM OR EXPRESSION (PROTECTED
SPEECH), OR ELECTION PROPAGANDA/POLITICAL ADVERTISEMENT[;]
After due deliberation, this court, on March 5, 2013, issued a temporary restraining order
enjoining respondents from enforcing the assailed notice and letter, and set oral arguments
A. ASSUMING ARGUENDO THAT THE TARPAULINS ARE A FORM
on March 19, 2013.16
OF EXPRESSION, WHETHER THE COMELEC POSSESSES THE
AUTHORITY TO REGULATE THE SAME[;]
On March 13, 2013, respondents filed their comment 17 arguing that (1) a petition for
certiorari and prohibition under Rule 65 of the Rules of Court filed before this court is not
B. WHETHER THIS FORM OF EXPRESSION MAY BE
the proper remedy to question the notice and letter of respondents; and (2) the tarpaulin is
REGULATED[;]
an election propaganda subject to regulation by COMELEC pursuant to its mandate under
IV.
WHETHER THE 22 FEBRUARY 2013 NOTICE/ ORDER BY ELECTION OFFICER
MAJARUCON AND THE 27 FEBRUARY 2013 ORDER BY THE COMELEC LAW
DEPARTMENT VIOLATES THE PRINCIPLE OF SEPARATION OF CHURCH AND
STATE[;] [AND]
V.
WHETHER THE ACTION OF THE PETITIONERS IN POSTING ITS TARPAULIN
VIOLATES THE CONSTITUTIONAL PRINCIPLE OF SEPARATION OF CHURCH AND
STATE.
I Trial Court executing its decision pending appeal.37 This courts ponencia discussed the
PROCEDURAL ISSUES
I.A
This courts jurisdiction over COMELEC cases
Respondents ask that this petition be dismissed on the ground that the notice and letter are
not final orders, decisions, rulings, or judgments of the COMELEC En Banc issued in the
exercise of its adjudicatory powers, reviewable via Rule 64 of the Rules of Court. 21
Rule 64 is not the exclusive remedy for all acts of the COMELEC. Rule 65 is applicable
especially to raise objections relating to a grave abuse of discretion resulting in the ouster
of jurisdiction.22 As a special civil action, there must also be a showing that there be no
plain, speedy, and adequate remedy in the ordinary course of the law.
Respondents contend that the assailed notice and letter are not subject to review by this
court, whose power to review is "limited only to final decisions, rulings and orders of the
COMELEC En Banc rendered in the exercise of its adjudicatory or quasi-judicial
power."23 Instead, respondents claim that the assailed notice and letter are reviewable only
by COMELEC itself pursuant to Article IX-C, Section 2(3) of the Constitution24 on
COMELECs power to decide all questions affecting elections. 25 Respondents invoke the
cases of Ambil, Jr. v. COMELEC,26 Repol v. COMELEC,27 Soriano, Jr. v.
COMELEC,28 Blanco v. COMELEC,29 and Cayetano v. COMELEC,30 to illustrate how
judicialintervention is limited to final decisions, orders, rulings and judgments of the
COMELEC En Banc.31
These cases are not applicable.
In Ambil, Jr. v. COMELEC, the losing party in the gubernatorial race of Eastern Samar filed
the election protest.32 At issue was the validity of the promulgation of a COMELEC Division
resolution.33 No motion for reconsideration was filed to raise this issue before the
COMELEC En Banc. This court declared that it did not have jurisdiction and clarified:
We have interpreted [Section 7, Article IX-A of the Constitution]34 to mean final orders,
rulings and decisionsof the COMELEC rendered in the exercise of its adjudicatory or quasi-
judicial powers." This decision must be a final decision or resolution of the Comelec en
banc, not of a division, certainly not an interlocutory order of a division.The Supreme Court
has no power to review viacertiorari, an interlocutory order or even a final resolution of a
Division of the Commission on Elections.35 (Emphasis in the original, citations omitted)
However, in the next case cited by respondents, Repol v. COMELEC, this court provided
exceptions to this general rule. Repolwas another election protest case, involving the
mayoralty elections in Pagsanghan, Samar.36 This time, the case was brought to this court
because the COMELEC First Division issued a status quo ante order against the Regional
general rule enunciated in Ambil, Jr. that it cannot take jurisdiction to review interlocutory
orders of a COMELEC Division.38However, consistent with ABS-CBN Broadcasting
Corporation v. COMELEC,39 it clarified the exception:
This Court, however, has ruled in the past that this procedural requirement [of filing a
motion for reconsideration] may be glossed over to prevent miscarriage of justice, when the
issue involves the principle of social justice or the protection of labor, when the decision or
resolution sought to be set aside is a nullity, or when the need for relief is extremely urgent
and certiorari is the only adequate and speedy remedy available.40
Based on ABS-CBN, this court could review orders and decisions of COMELEC in
electoral contests despite not being reviewed by the COMELEC En Banc, if:
1) It will prevent the miscarriage of justice;
2) The issue involves a principle of social justice;
3) The issue involves the protection of labor;
4) The decision or resolution sought tobe set aside is a nullity; or
5) The need for relief is extremely urgent and certiorari is the only adequate and
speedy remedy available.
Ultimately, this court took jurisdiction in Repoland decided that the status quo anteorder
issued by the COMELEC Division was unconstitutional.
Respondents also cite Soriano, Jr. v. COMELEC.This case was also an election protest
case involving candidates for the city council of Muntinlupa City. 41 Petitioners in Soriano,
Jr.filed before this court a petition for certiorari against an interlocutory order of the
COMELEC First
Division.42 While the petition was pending in this court, the COMELEC First Division
dismissed the main election protest case.43 Sorianoapplied the general rule that only final
orders should be questioned with this court. The ponencia for this court, however,
acknowledged the exceptions to the general rule in ABS-CBN.44
Blanco v. COMELEC, another case cited by respondents, was a disqualification case of
one of the mayoralty candidates of Meycauayan, Bulacan. 45 The COMELEC Second
Division ruled that petitioner could not qualify for the 2007 elections due to the findings in
an administrative case that he engaged in vote buying in the 1995 elections. 46No motion for
reconsideration was filed before the COMELEC En Banc. This court, however, took
cognizance of this case applying one of the exceptions in ABS-CBN: The assailed
resolution was a nullity.47
Finally, respondents cited Cayetano v. COMELEC, a recent election protest case involving
the mayoralty candidates of Taguig City.48 Petitioner assailed a resolution of the COMELEC
denying her motion for reconsideration to dismiss the election protest petition for lack of
form and substance.49 This court clarified the general rule and refused to take cognizance
of the review of the COMELEC order. While recognizing the exceptions in ABS-CBN, this
court ruled that these exceptions did not apply.50
Ambil, Jr., Repol, Soriano, Jr., Blanco, and Cayetano cited by respondents do not operate
as precedents to oust this court from taking jurisdiction over this case. All these cases cited
involve election protests or disqualification cases filed by the losing candidate against the
winning candidate.
In the present case, petitioners are not candidates seeking for public office. Their petition is
filed to assert their fundamental right to expression.
Furthermore, all these cases cited by respondents pertained to COMELECs exercise of its
adjudicatory or quasi-judicial power. This case pertains to acts of COMELEC in the
implementation of its regulatory powers. When it issued the notice and letter, the
COMELEC was allegedly enforcingelection laws.
I.B
Rule 65, grave abuse of discretion,
and limitations on political speech
The main subject of thiscase is an alleged constitutional violation: the infringement on
speech and the "chilling effect" caused by respondent COMELECs notice and letter.
Petitioners allege that respondents committed grave abuse of discretion amounting to lack
or excess of jurisdiction in issuing the notice51 dated February 22,2013 and letter52 dated
February 27, 2013 ordering the removal of the tarpaulin.53 It is their position that these
infringe on their fundamental right to freedom of expression and violate the principle of
separation of church and state and, thus, are unconstitutional. 54
The jurisdiction of this court over the subject matter is determined from the allegations in
the petition. Subject matter jurisdiction is defined as the authority "to hear and determine
cases of the general class to which the proceedings in question belong and is conferred by
the sovereign authority which organizes the court and defines its powers."55Definitely, the
subject matter in this case is different from the cases cited by respondents.
Nothing less than the electorates political speech will be affected by the restrictions
imposed by COMELEC. Political speech is motivated by the desire to be heard and
understood, to move people to action. It is concerned with the sovereign right to change the
contours of power whether through the election of representatives in a republican
government or the revision of the basic text of the Constitution. The zeal with which we
protect this kind of speech does not depend on our evaluation of the cogency of the
message. Neither do we assess whether we should protect speech based on the motives of
COMELEC. We evaluate restrictions on freedom of expression from their effects. We
protect both speech and medium because the quality of this freedom in practice will define
the quality of deliberation in our democratic society.
COMELECs notice and letter affect preferred speech. Respondents acts are capable of
repetition. Under the conditions in which it was issued and in view of the novelty of this
case,it could result in a "chilling effect" that would affect other citizens who want their voices
heard on issues during the elections. Other citizens who wish to express their views
regarding the election and other related issues may choose not to, for fear of reprisal or
sanction by the COMELEC. Direct resort to this court is allowed to avoid such proscribed
conditions. Rule 65 is also the procedural platform for raising grave abuse of discretion.
Both parties point to constitutional provisions on jurisdiction. For petitioners, it referred to
this courts expanded exercise of certiorari as provided by the Constitution as follows:
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
ornot 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.56(Emphasis supplied)
On the other hand, respondents relied on its constitutional mandate to decide all questions
affectingelections. Article IX-C, Section 2(3) of the Constitution, provides:
Sec. 2. The Commission on Elections shall exercise the following powers and functions:
....
(3) Decide, except those involving the right to vote, all questions affecting elections,
including determination of the number and location of polling places, appointment of
election officials and inspectors, and registration of voters.
Respondents reliance on this provision is misplaced.
We are not confronted here with the question of whether the COMELEC, in its exercise of
jurisdiction, gravely abused it. We are confronted with the question as to whether the
COMELEC had any jurisdiction at all with its acts threatening imminent criminal action
effectively abridging meaningful political speech.
It is clear that the subject matter of the controversy is the effect of COMELECs notice and
letter on free speech. This does not fall under Article IX-C, Section 2(3) of the Constitution.
The use of the word "affecting" in this provision cannot be interpreted to mean that
COMELEC has the exclusive power to decide any and allquestions that arise during
elections. COMELECs constitutional competencies during elections should not operate to
divest this court of its own jurisdiction.
The more relevant provision for jurisdiction in this case is Article VIII, Section 5(1) of the
Constitution.This provision provides for this courts original jurisdiction over petitions for
certiorari and prohibition. This should be read alongside the expanded jurisdiction of the
court in Article VIII, Section 1 of the Constitution.
Certainly, a breach of the fundamental right of expression by COMELEC is grave abuse of
discretion. Thus, the constitutionality of the notice and letter coming from COMELEC is
within this courts power to review.
During elections, we have the power and the duty to correct any grave abuse of discretion
or any act tainted with unconstitutionality on the part of any government branch or
instrumentality. This includes actions by the COMELEC. Furthermore, it is this courts
constitutional mandate to protect the people against governments infringement of their
fundamental rights. This constitutional mandate out weighs the jurisdiction vested with the
COMELEC.
It will, thus, be manifest injustice if the court does not take jurisdiction over this case.
I.C
Hierarchy of courts
This brings us to the issue of whether petitioners violated the doctrine of hierarchy of courts
in directly filing their petition before this court.
Respondents contend that petitioners failure to file the proper suit with a lower court of
concurrent jurisdiction is sufficient ground for the dismissal of their petition. 57 They add that
observation of the hierarchy of courts is compulsory, citing Heirs of Bertuldo Hinog v.
Melicor.58 While respondents claim that while there are exceptions to the general rule on
hierarchy of courts, none of these are present in this case. 59
On the other hand, petitioners cite Fortich v. Corona60 on this courts discretionary power to
take cognizance of a petition filed directly to it if warranted by "compelling reasons, or [by]
the nature and importance of the issues raised. . . ."61 Petitioners submit that there are
"exceptional and compelling reasons to justify a direct resort [with] this Court."62
In Baez, Jr. v. Concepcion,63 we explained the necessity of the application of the hierarchy
of courts:
The Court must enjoin the observance of the policy on the hierarchy of courts, and now
affirms that the policy is not to be ignored without serious consequences. The strictness of
the policy is designed to shield the Court from having to deal with causes that are also well
within the competence of the lower courts, and thus leave time to the Court to deal with the
more fundamental and more essential tasks that the Constitution has assigned to it. The
Court may act on petitions for the extraordinary writs of certiorari, prohibition and
mandamus only when absolutely necessary or when serious and important reasons exist to
justify an exception to the policy.64
In Baez, we also elaborated on the reasons why lower courts are allowed to issue writs of
certiorari, prohibition, and mandamus, citing Vergara v. Suelto:65
The Supreme Court is a court of lastresort, and must so remain if it is to satisfactorily
perform the functions assigned to it by the fundamental charter and immemorial tradition. It
cannot and should not be burdened with the task of dealing with causes in the first
instance. Its original jurisdiction to issue the so-called extraordinary writs should be
exercised only where absolutely necessary or where serious and important reasons exist
therefore. Hence, that jurisdiction should generally be exercised relative to actions or
proceedings before the Court of Appeals, or before constitutional or other tribunals, bodies
or agencies whose acts for some reason or another are not controllable by the Court of
Appeals. Where the issuance of an extraordinary writ is also within the competence of the
Court of Appeals or a Regional Trial Court, it is in either of these courts that the specific
action for the writs procurement must be presented. This is and should continue to be the
policy in this regard, a policy that courts and lawyers must strictly observe. 66 (Emphasis
omitted)
The doctrine that requires respect for the hierarchy of courts was created by this court to
ensure that every level of the judiciary performs its designated roles in an effective and
efficient manner. Trial courts do not only determine the facts from the evaluation of the
evidence presented before them. They are likewise competent to determine issues of law
which may include the validity of an ordinance, statute, or even an executive issuance in
relation to the Constitution.67 To effectively perform these functions, they are territorially
organized into regions and then into branches. Their writs generally reach within those
territorial boundaries. Necessarily, they mostly perform the all-important task of inferring the
facts from the evidence as these are physically presented before them. In many instances,
the facts occur within their territorial jurisdiction, which properly present the actual case
that makes ripe a determination of the constitutionality of such action. The consequences,
of course, would be national in scope. There are, however, some cases where resort to
courts at their level would not be practical considering their decisions could still be
appealed before the higher courts, such as the Court of Appeals.
The Court of Appeals is primarily designed as an appellate court that reviews the
determination of facts and law made by the trial courts. It is collegiate in nature. This nature
ensures more standpoints in the review of the actions of the trial court. But the Court of
Appeals also has original jurisdiction over most special civil actions. Unlike the trial courts,
its writs can have a nationwide scope. It is competent to determine facts and, ideally,
should act on constitutional issues thatmay not necessarily be novel unless there are
factual questions to determine.
This court, on the other hand, leads the judiciary by breaking new ground or further
reiterating in the light of new circumstances or in the light of some confusions of bench
or bar existing precedents. Rather than a court of first instance or as a repetition of the
actions of the Court of Appeals, this court promulgates these doctrinal devices in order that
it truly performs that role.
In other words, the Supreme Courts role to interpret the Constitution and act in order to
protect constitutional rights when these become exigent should not be emasculated by the
doctrine in respect of the hierarchy of courts. That has never been the purpose of such
doctrine.
Thus, the doctrine of hierarchy of courts is not an iron-clad rule.68 This court has "full
discretionary power to take cognizance and assume jurisdiction [over] special civil actions
for certiorari . . .filed directly with it for exceptionally compelling reasons 69 or if warranted by
the nature of the issues clearly and specifically raised in the petition." 70 As correctly pointed
out by petitioners,71 we have provided exceptions to this doctrine:
First, a direct resort to this court is allowed when there are genuine issues of
constitutionality that must be addressed at the most immediate time. A direct resort to this
court includes availing of the remedies of certiorari and prohibition toassail the
constitutionality of actions of both legislative and executive branches of the government. 72
In this case, the assailed issuances of respondents prejudice not only petitioners right to
freedom of expression in the present case, but also of others in future similar cases. The
case before this court involves an active effort on the part of the electorate to reform the
political landscape. This has become a rare occasion when private citizens actively engage
the public in political discourse. To quote an eminent political theorist:
[T]he theory of freedom of expression involves more than a technique for arriving at better
social judgments through democratic procedures. It comprehends a vision of society, a faith
and a whole way of life. The theory grew out of an age that was awakened and invigorated
by the idea of new society in which man's mind was free, his fate determined by his own
powers of reason, and his prospects of creating a rational and enlightened civilization
virtually unlimited. It is put forward as a prescription for attaining a creative, progressive,
exciting and intellectually robust community. It contemplates a mode of life that, through
encouraging toleration, skepticism, reason and initiative, will allow man to realize his full
potentialities.It spurns the alternative of a society that is tyrannical, conformist, irrational
and stagnant.73
In a democracy, the citizens right tofreely participate in the exchange of ideas in
furtherance of political decision-making is recognized. It deserves the highest protection the
courts may provide, as public participation in nation-building isa fundamental principle in
our Constitution. As such, their right to engage in free expression of ideas must be given
immediate protection by this court.
A second exception is when the issuesinvolved are of transcendental importance. 74 In
these cases, the imminence and clarity of the threat to fundamental constitutional rights
outweigh the necessity for prudence. The doctrine relating to constitutional issues of
transcendental importance prevents courts from the paralysis of procedural niceties when
clearly faced with the need for substantial protection.
In the case before this court, there is a clear threat to the paramount right of freedom of
speech and freedom of expression which warrants invocation of relief from this court. The
principles laid down in this decision will likely influence the discourse of freedom of speech
in the future, especially in the context of elections. The right to suffrage not only includes
the right to vote for ones chosen candidate, but also the right to vocalize that choice to the
public in general, in the hope of influencing their votes. It may be said that in an election
year, the right to vote necessarily includes the right to free speech and expression. The
protection of these fundamental constitutional rights, therefore, allows for the immediate
resort to this court.
Third, cases of first impression75 warrant a direct resort to this court. In cases of first
impression, no jurisprudence yet exists that will guide the lower courts on this matter. In
Government of the United States v. Purganan,76 this court took cognizance of the case as a
matter of first impression that may guide the lower courts:
In the interest of justice and to settle once and for all the important issue of bail in
extradition proceedings, we deem it best to take cognizance of the present case. Such
proceedings constitute a matter of first impression over which there is, as yet, no local
jurisprudence to guide lower courts.77
This court finds that this is indeed a case of first impression involving as it does the issue of
whether the right of suffrage includes the right of freedom of expression. This is a question
which this court has yet to provide substantial answers to, through jurisprudence. Thus,
direct resort to this court is allowed.
Fourth, the constitutional issues raisedare better decided by this court. In Drilon v.
Lim,78 this court held that:
. . . it will be prudent for such courts, if only out of a becoming modesty, to defer to the This case also poses a question of similar, if not greater import. Hence, a direct action to
higher judgmentof this Court in the consideration of its validity, which is better determined this court is permitted.
after a thorough deliberation by a collegiate body and with the concurrence of the majority
of those who participated in its discussion.79 (Citation omitted)
It is not, however, necessary that all of these exceptions must occur at the same time to
justify a direct resort to this court. While generally, the hierarchy of courts is respected, the
In this case, it is this court, with its constitutionally enshrined judicial power, that can rule present case falls under the recognized exceptions and, as such, may be resolved by this
with finality on whether COMELEC committed grave abuse of discretion or performed acts court directly.
contrary to the Constitution through the assailed issuances.
I.D
Fifth, the time element presented in this case cannot be ignored. This case was filed during
the 2013 election period. Although the elections have already been concluded, future cases
The concept of a political question
may be filed that necessitate urgency in its resolution. Exigency in certain situations would
qualify as an exception for direct resort to this court.
Respondents argue further that the size limitation and its reasonableness is a political
question, hence not within the ambit of this courts power of review. They cite Justice
Sixth, the filed petition reviews the act of a constitutional organ. COMELEC is a
Vitugs separate opinion in Osmea v. COMELEC86 to support their position:
constitutional body. In Albano v. Arranz,80 cited by petitioners, this court held that "[i]t is
easy to realize the chaos that would ensue if the Court of First Instance ofeach and every
province were [to] arrogate itself the power to disregard, suspend, or contradict any order of It might be worth mentioning that Section 26, Article II, of the Constitution also states that
the Commission on Elections: that constitutional body would be speedily reduced to the "State shall guarantee equal access to opportunities for public service, and prohibit
impotence."81 political dynasties as may be defined by law." I see neither Article IX (C)(4) nor Section 26,
Article II, of the Constitution to be all that adversarial or irreconcilably inconsistent with the
right of free expression. In any event, the latter, being one of general application, must yield
In this case, if petitioners sought to annul the actions of COMELEC through pursuing
to the specific demands of the Constitution. The freedom of expression concededly holds, it
remedies with the lower courts, any ruling on their part would not have been binding for
is true, a vantage point in hierarchy of constitutionally-enshrined rights but, like all
other citizens whom respondents may place in the same situation. Besides, thiscourt
fundamental rights, it is not without limitations.
affords great respect to the Constitution and the powers and duties imposed upon
COMELEC. Hence, a ruling by this court would be in the best interest of respondents, in
order that their actions may be guided accordingly in the future. The case is not about a fight between the "rich" and the "poor" or between the "powerful"
and the "weak" in our society but it is to me a genuine attempt on the part of Congress and
the Commission on Elections to ensure that all candidates are given an equal chance to
Seventh, petitioners rightly claim that they had no other plain, speedy, and adequate
media coverage and thereby be equally perceived as giving real life to the candidates right
remedy in the ordinary course of law that could free them from the injurious effects of
of free expression rather than being viewed as an undue restriction of that freedom. The
respondents acts in violation of their right to freedom of expression.
wisdom in the enactment of the law, i.e., that which the legislature deems to be best in
giving life to the Constitutional mandate, is not for the Court to question; it is a matter that
In this case, the repercussions of the assailed issuances on this basic right constitute an lies beyond the normal prerogatives of the Court to pass upon. 87
exceptionally compelling reason to justify the direct resort to this court. The lack of other
sufficient remedies in the course of law alone is sufficient ground to allow direct resort to
This separate opinion is cogent for the purpose it was said. But it is not in point in this case.
this court.

The present petition does not involve a dispute between the rich and poor, or the powerful
Eighth, the petition includes questionsthat are "dictated by public welfare and the
and weak, on their equal opportunities for media coverage of candidates and their right to
advancement of public policy, or demanded by the broader interest of justice, or the orders
freedom of expression. This case concerns the right of petitioners, who are non-candidates,
complained of were found to be patent nullities, or the appeal was consideredas clearly an
to post the tarpaulin in their private property, asan exercise of their right of free expression.
inappropriate remedy."82 In the past, questions similar to these which this court ruled on
Despite the invocation of the political question doctrine by respondents, this court is not
immediately despite the doctrine of hierarchy of courts included citizens right to bear
proscribed from deciding on the merits of this case.
arms,83 government contracts involving modernization of voters registration lists,84 and the
status and existence of a public office.85
In Taada v. Cuenco,88 this court previously elaborated on the concept of what constitutes
a political question:
What is generally meant, when it is said that a question is political, and not judicial, is that it
is a matter which is to be exercised by the people in their primary political capacity, or that it
has been specifically delegated to some other department or particular officer of the
government, withdiscretionary power to act.89 (Emphasis omitted)
It is not for this court to rehearse and re-enact political debates on what the text of the law
should be. In political forums, particularly the legislature, the creation of the textof the law is
based on a general discussion of factual circumstances, broadly construed in order to allow
for general application by the executive branch. Thus, the creation of the law is not limited
by particular and specific facts that affect the rights of certain individuals, per se.
Courts, on the other hand, rule on adversarial positions based on existing facts established
on a specific case-to-case basis, where parties affected by the legal provision seek the
courts understanding of the law.
The complementary nature of the political and judicial branches of government is essential
in order to ensure that the rights of the general public are upheld at all times. In order to
preserve this balance, branches of government must afford due respectand deference for
the duties and functions constitutionally delegated to the other. Courts cannot rush to
invalidate a law or rule. Prudence dictates that we are careful not to veto political acts
unless we can craft doctrine narrowly tailored to the circumstances of the case.
The case before this court does not call for the exercise of prudence or modesty. There is
no political question. It can be acted upon by this court through the expanded jurisdiction
granted to this court through Article VIII, Section 1 of the Constitution.
A political question arises in constitutional issues relating to the powers or competence of
different agencies and departments of the executive or those of the legislature. The political
question doctrine is used as a defense when the petition asks this court to nullify certain
acts that are exclusively within the domain of their respective competencies, as provided by
the Constitution or the law. In such situation, presumptively, this court should act with
deference. It will decline to void an act unless the exercise of that power was so capricious
and arbitrary so as to amount to grave abuse of discretion.
The concept of a political question, however, never precludes judicial review when the act
of a constitutional organ infringes upon a fundamental individual or collective right. Even
assuming arguendo that the COMELEC did have the discretion to choose the manner of
regulation of the tarpaulin in question, it cannot do so by abridging the fundamental right to
expression.
Marcos v. Manglapus90 limited the use of the political question doctrine:
When political questions are involved, the Constitution limits the determination 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. If grave abuse is not
established, the Court will not substitute its judgment for that of the official concerned and
decide a matter which by its nature or by law is for the latter alone to decide.91
How this court has chosen to address the political question doctrine has undergone an
evolution since the timethat it had been first invoked in Marcos v. Manglapus. Increasingly,
this court has taken the historical and social context of the case and the relevance of
pronouncements of carefully and narrowly tailored constitutional doctrines. This trend was
followed in cases such as Daza v. Singson92 and Coseteng v. Mitra Jr.93
Daza and Coseteng involved a question as to the application of Article VI, Section 18 of the
1987 Constitution involving the removal of petitioners from the Commission on
Appointments. In times past, this would have involved a quint essentially political question
as it related to the dominance of political parties in Congress. However, in these cases, this
court exercised its power of judicial review noting that the requirement of interpreting the
constitutional provision involved the legality and not the wisdom of a manner by which a
constitutional duty or power was exercised. This approach was again reiterated in Defensor
Santiago v. Guingona, Jr.94
In Integrated Bar of the Philippines v. Zamora,95 this court declared again that the possible
existence ofa political question did not bar an examination of whether the exercise of
discretion was done with grave abuse of discretion. In that case, this court ruled on the
question of whether there was grave abuse of discretion in the Presidents use of his power
to call out the armed forces to prevent and suppress lawless violence.
In Estrada v. Desierto,96 this court ruled that the legal question as to whether a former
President resigned was not a political question even if the consequences would be to
ascertain the political legitimacy of a successor President.
Many constitutional cases arise from political crises. The actors in such crises may use the
resolution of constitutional issues as leverage. But the expanded jurisdiction of this court
now mandates a duty for it to exercise its power of judicial review expanding on principles
that may avert catastrophe or resolve social conflict.
This courts understanding of the political question has not been static or unbending. In
Llamas v. Executive Secretary Oscar Orbos,97 this court held:
While it is true that courts cannot inquire into the manner in which the President's
discretionary powers are exercised or into the wisdom for its exercise, it is also a settled
rule that when the issue involved concerns the validity of such discretionary powers or
whether said powers are within the limits prescribed by the Constitution, We will not decline
to exercise our power of judicial review. And such review does not constitute a modification
or correction of the act of the President, nor does it constitute interference with the
functions of the President.98
The concept of judicial power in relation to the concept of the political question was
discussed most extensively in Francisco v. HRET. 99 In this case, the House of
Representatives arguedthat the question of the validity of the second impeachment
complaint that was filed against former Chief Justice Hilario Davide was a political question
beyond the ambit of this court. Former Chief Justice Reynato Puno elaborated on this
concept in his concurring and dissenting opinion:
To be sure, the force to impugn the jurisdiction of this Court becomes more feeble in light of
the new Constitution which expanded the definition of judicial power as including "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." As well observed by retired Justice Isagani Cruz, this
expanded definition of judicial power considerably constricted the scope of political
question. He opined that the language luminously suggests that this duty (and power) is
available even against the executive and legislative departments including the President
and the Congress, in the exercise of their discretionary powers.100 (Emphasis in the original,
citations omitted)
Francisco also provides the cases which show the evolution of the political question, as
applied in the following cases:
In Marcos v. Manglapus, this Court, speaking through Madame Justice Irene Cortes, held:
The present Constitution limits resort to the political question doctrine and broadens the
scope of judicial inquiry into areas which the Court,under previous constitutions, would
have normally left to the political departments to decide. x x x
In Bengzon v. Senate Blue Ribbon Committee, through Justice Teodoro Padilla, this Court
declared:
The "allocation of constitutional boundaries" is a task that this Court must perform under the
Constitution. Moreover, as held in a recent case, "(t)he political question doctrine neither
interposes an obstacle to judicial determination of the rival claims. The jurisdiction to delimit
constitutional boundaries has been given to this Court. It cannot abdicate that obligation
mandated by the 1987 Constitution, although said provision by no means does away with
the applicability of the principle in appropriate cases." (Emphasis and italics supplied)
And in Daza v. Singson, speaking through Justice Isagani Cruz, this Court ruled:
In the case now before us, the jurisdictional objection becomes even less tenable and
decisive. The reason is that, even if we were to assume that the issue presented before us
was political in nature, we would still not be precluded from resolving it under the expanded
jurisdiction conferred upon us that now covers, in proper cases, even the political
question.x x x (Emphasis and italics supplied.)
....
In our jurisdiction, the determination of whether an issue involves a truly political and non-
justiciable question lies in the answer to the question of whether there are constitutionally
imposed limits on powers or functions conferred upon political bodies. If there are, then our
courts are duty-bound to examine whether the branch or instrumentality of the government
properly acted within such limits.101 (Citations omitted)
As stated in Francisco, a political question will not be considered justiciable if there are no
constitutionally imposed limits on powers or functions conferred upon political bodies.
Hence, the existence of constitutionally imposed limits justifies subjecting the official actions
of the body to the scrutiny and review of this court.
In this case, the Bill of Rights gives the utmost deference to the right to free speech. Any
instance that this right may be abridged demands judicial scrutiny. It does not fall squarely
into any doubt that a political question brings.
I.E
Exhaustion of administrative remedies
Respondents allege that petitioners violated the principle of exhaustion of administrative
remedies. Respondents insist that petitioners should have first brought the matter to the
COMELEC En Banc or any of its divisions.102
Respondents point out that petitioners failed to comply with the requirement in Rule 65 that
"there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of
law."103 They add that the proper venue to assail the validity of the assailed issuances was
in the course of an administrative hearing to be conducted by COMELEC. 104 In the event
that an election offense is filed against petitioners for posting the tarpaulin, they claim that
petitioners should resort to the remedies prescribed in Rule 34 of the COMELEC Rules of
Procedure.105
The argument on exhaustion of administrative remedies is not proper in this case.
Despite the alleged non-exhaustion of administrative remedies, it is clear that the
controversy is already ripe for adjudication. Ripeness is the "prerequisite that something
had by then been accomplished or performed by either branch [or in this case, organ of
government] before a court may come into the picture."106
Petitioners exercise of their rightto speech, given the message and their medium, had
understandable relevance especially during the elections. COMELECs letter threatening
the filing of the election offense against petitioners is already an actionable infringement of
this right. The impending threat of criminal litigation is enough to curtail petitioners speech.
In the context of this case, exhaustion of their administrative remedies as COMELEC
suggested in their pleadings prolongs the violation of their freedom of speech.
Political speech enjoys preferred protection within our constitutional order. In Chavez v.
Gonzales,107 Justice Carpio in a separate opinion emphasized: "[i]f everthere is a hierarchy
of protected expressions, political expression would occupy the highest rank, and among
different kinds of political expression, the subject of fair and honest elections would be at
the top."108 Sovereignty resides in the people.109 Political speech is a direct exercise of the
sovereignty. The principle of exhaustion of administrative remedies yields in order to protect
this fundamental right.
Respondents cite the Constitution, laws, and jurisprudence to support their position that
they had the power to regulate the tarpaulin.113 However, all of these provisions pertain to
candidates and political parties. Petitioners are not candidates. Neither do theybelong to
any political party. COMELEC does not have the authority to regulate the enjoyment of the
preferred right to freedom of expression exercised by a non-candidate in this case.
II.A.1

Even assuming that the principle of exhaustion of administrative remedies is applicable, the
First, respondents cite Article IX-C, Section 4 of the Constitution, which provides:
current controversy is within the exceptions to the principle. In Chua v. Ang, 110 this court
held:
Section 4. The Commission may,during the election period, supervise or regulate the
enjoyment or utilization of all franchises or permits for the operation of transportation and
On the other hand, prior exhaustion of administrative remedies may be dispensed with and
other public utilities, media of communication or information, all grants, special privileges, or
judicial action may be validly resorted to immediately: (a) when there is a violation of due
concessions granted by the Government or any subdivision, agency, or instrumentality
process; (b) when the issue involved is purely a legal question; (c) when the administrative
thereof, including any government-owned or controlled corporation or its subsidiary. Such
action is patently illegal amounting to lack or excess of jurisdiction; (d) when there is
supervision or regulation shall aim to ensure equal opportunity, time, and space, and the
estoppel on the part ofthe administrative agency concerned; (e) when there is irreparable
right to reply, including reasonable, equal rates therefor, for public information campaigns
injury; (f) when the respondent is a department secretary whose acts as analter ego of the
and forums among candidates in connection with the objective of holding free, orderly,
President bear the implied and assumed approval of the latter; (g) when to require
honest, peaceful, and credible elections.114 (Emphasis supplied)
exhaustion of administrative remedies would be unreasonable; (h) when it would amount to
a nullification of a claim; (i) when the subject matter is a private land in land case
proceedings; (j) whenthe rule does not provide a plain, speedy and adequate remedy; or (k) Sanidad v. COMELEC115 involved the rules promulgated by COMELEC during the
when there are circumstances indicating the urgency of judicial intervention." 111 (Emphasis plebiscite for the creation of the Cordillera Autonomous Region.116 Columnist Pablito V.
supplied, citation omitted) Sanidad questioned the provision prohibiting journalists from covering plebiscite issues on
the day before and on plebiscite day.117 Sanidad argued that the prohibition was a violation
of the "constitutional guarantees of the freedom of expression and of the press. . . ."118 We
The circumstances emphasized are squarely applicable with the present case. First,
held that the "evil sought to be prevented by this provision is the possibility that a franchise
petitioners allegethat the assailed issuances violated their right to freedom of expression
holder may favor or give any undue advantage to a candidate in terms of advertising space
and the principle of separation of church and state. This is a purely legal question. Second,
or radio or television time."119 This court found that "[m]edia practitioners exercising their
the circumstances of the present case indicate the urgency of judicial intervention
freedom of expression during plebiscite periods are neither the franchise holders nor the
considering the issue then on the RH Law as well as the upcoming elections. Thus, to
candidates[,]"120 thus, their right to expression during this period may not be regulated by
require the exhaustion of administrative remedies in this case would be unreasonable.
COMELEC.121

Time and again, we have held that this court "has the power to relax or suspend the rules
Similar to the media, petitioners in the case at bar are neither franchise holders nor
or to except a case from their operation when compelling reasons so warrant, or whenthe
candidates. II.A.2
purpose of justice requires it, [and when] [w]hat constitutes [as] good and sufficient cause
that will merit suspension of the rules is discretionary upon the court". 112Certainly, this case
of first impression where COMELEC has threatenedto prosecute private parties who seek Respondents likewise cite Article IX-C, Section 2(7) of the Constitution as follows:122
to participate in the elections by calling attention to issues they want debated by the
publicin the manner they feel would be effective is one of those cases.
Sec. 2. The Commission on Elections shall exercise the following powers and functions:

II
SUBSTANTIVE ISSUES ....

II.A (7) Recommend to the Congress effective measures to minimize election spending,
including limitation of places where propaganda materials shall be posted, and to prevent
and penalize all forms of election frauds, offenses, malpractices, and nuisance candidates.
COMELEC had no legal basis to regulate expressions made by private citizens (Emphasis supplied) Based on the enumeration made on actsthat may be penalized, it will
be inferred that this provision only affects candidates.
Petitioners assail the "Notice to Remove Campaign Materials" issued by COMELEC. This
was followed bythe assailed letter regarding the "election propaganda material posted on
the church vicinity promoting for or against the candidates and party-list groups. . . ."123
Section 9 of the Fair Election Act124 on the posting of campaign materials only mentions
"parties" and "candidates":
Sec. 9. Posting of Campaign Materials. - The COMELEC may authorize political parties and
party-list groups to erect common poster areas for their candidates in not more than ten
(10) public places such as plazas, markets, barangay centers and the like, wherein
candidates can post, display or exhibit election propaganda: Provided, That the size ofthe
poster areas shall not exceed twelve (12) by sixteen (16) feet or its equivalent. Independent
candidates with no political parties may likewise be authorized to erect common poster
areas in not more than ten (10) public places, the size of which shall not exceed four (4) by
six (6) feet or its equivalent. Candidates may post any lawful propaganda material in private
places with the consent of the owner thereof, and in public places or property which shall
be allocated equitably and impartially among the candidates. (Emphasis supplied)
Similarly, Section 17 of COMELEC Resolution No. 9615, the rules and regulations
implementing the Fair Election Act, provides as follows:
SECTION 17. Posting of Campaign Materials. - Parties and candidates may post any lawful
campaign material in:
a. Authorized common poster areasin public places subject to the requirements
and/or limitations set forth in the next following section; and
b. Private places provided it has the consent of the owner thereof.
The posting of campaign materials in public places outside of the designated common
poster areas and those enumerated under Section 7 (g) of these Rules and the like is
prohibited. Persons posting the same shall be liable together with the candidates and other
persons who caused the posting. It will be presumed that the candidates and parties
caused the posting of campaign materials outside the common poster areas if they do not
remove the same within three (3) days from notice which shall be issued by the Election
Officer of the city or municipality where the unlawful election propaganda are posted or
displayed.
Members of the PNP and other law enforcement agencies called upon by the Election
Officeror other officials of the COMELEC shall apprehend the violators caught in the act,
and file the appropriate charges against them. (Emphasis supplied)
Respondents considered the tarpaulin as a campaign material in their issuances. The
above provisions regulating the posting of campaign materials only apply to candidates and
political parties, and petitioners are neither of the two.
Section 3 of Republic Act No. 9006on "Lawful Election Propaganda" also states that these
are "allowed for all registered political parties, national, regional, sectoral parties or
organizations participating under the party-list elections and for all bona fide candidates
seeking national and local elective positions subject to the limitation on authorized
expenses of candidates and political parties. . . ." Section 6 of COMELEC Resolution No.
9615 provides for a similar wording. These provisions show that election propaganda refers
to matter done by or on behalf of and in coordination with candidates and political parties.
Some level of coordination with the candidates and political parties for whom the election
propaganda are released would ensure that these candidates and political parties maintain
within the authorized expenses limitation.
The tarpaulin was not paid for byany candidate or political party. 125 There was no allegation
that petitioners coordinated with any of the persons named in the tarpaulin regarding its
posting. On the other hand, petitioners posted the tarpaulin as part of their advocacy
against the RH Law. Respondents also cite National Press Club v. COMELEC126 in arguing
that its regulatory power under the Constitution, to some extent, set a limit on the right to
free speech during election period.127
National Press Club involved the prohibition on the sale and donation of space and time for
political advertisements, limiting political advertisements to COMELEC-designated space
and time. This case was brought by representatives of mass media and two candidates for
office in the 1992 elections. They argued that the prohibition on the sale and donation of
space and time for political advertisements is tantamount to censorship, which necessarily
infringes on the freedom of speech of the candidates.128
This court upheld the constitutionality of the COMELEC prohibition in National Press Club.
However, this case does not apply as most of the petitioners were electoral candidates,
unlike petitioners in the instant case. Moreover, the subject matter of National Press Club,
Section 11(b) of Republic Act No. 6646,129 only refers to a particular kind of media such as
newspapers, radio broadcasting, or television.130 Justice Feliciano emphasized that the
provision did not infringe upon the right of reporters or broadcasters to air their
commentaries and opinions regarding the candidates, their qualifications, and program for
government. Compared to Sanidadwherein the columnists lost their ability to give their
commentary on the issues involving the plebiscite, National Press Clubdoes not involve the
same infringement.
In the case at bar, petitioners lost their ability to give a commentary on the candidates for
the 2013 national elections because of the COMELEC notice and letter. It was not merelya
regulation on the campaigns of candidates vying for public office. Thus, National Press
Clubdoes not apply to this case.
Finally, Section 79 of Batas Pambansa Blg. 881, otherwise known as the Omnibus Election
Code, defines an"election campaign" as follows:
....
(b) The term "election campaign" or "partisan political activity" refers to an act designed to
promote the election or defeat of a particular candidate or candidates to a public office
which shall include:
(1) Forming organizations, associations, clubs, committees or other groups of
persons for the purpose of soliciting votes and/or undertaking any campaign for
or against a candidate;
(2) Holding political caucuses, conferences, meetings, rallies, parades, or other
similar assemblies, for the purpose of soliciting votes and/or undertaking any
campaign or propaganda for or against a candidate;
(3) Making speeches, announcements or commentaries, or holding interviews for
or against the election of any candidate for public office;
(4) Publishing or distributing campaign literature or materials designed to support
or oppose the election of any candidate; or
(5) Directly or indirectly soliciting votes, pledges or support for or against a
candidate.
The foregoing enumerated acts ifperformed for the purpose of enhancing the chances of
aspirants for nomination for candidacy to a public office by a political party, aggroupment,
or coalition of parties shall not be considered as election campaign or partisan election
activity. Public expressions or opinions or discussions of probable issues in a forthcoming
electionor on attributes of or criticisms against probable candidates proposed to be
nominated in a forthcoming political party convention shall not be construed as part of any
election campaign or partisan political activity contemplated under this Article. (Emphasis
supplied)
True, there is no mention whether election campaign is limited only to the candidates and
political parties themselves. The focus of the definition is that the act must be "designed to
promote the election or defeat of a particular candidate or candidates to a public office."
In this case, the tarpaulin contains speech on a matter of public concern, that is, a
statement of either appreciation or criticism on votes made in the passing of the RH law.
Thus, petitioners invoke their right to freedom of expression.
II.B
The violation of the constitutional right
to freedom of speech and expression
Petitioners contend that the assailed notice and letter for the removal of the tarpaulin violate
their fundamental right to freedom of expression.
On the other hand, respondents contend that the tarpaulin is an election propaganda
subject to their regulation pursuant to their mandate under Article IX-C, Section 4 of the
Constitution. Thus, the assailed notice and letter ordering itsremoval for being oversized
are valid and constitutional.131
II.B.1
Fundamental to the consideration of this issue is Article III, Section 4 of the Constitution:
Section 4. No law shall be passed abridging the freedom of speech, of expression, or of the
press, or the right of the people peaceably to assemble and petition the government for
redress of grievances.132
No law. . .
While it is true that the present petition assails not a law but an opinion by the COMELEC
Law Department, this court has applied Article III, Section 4 of the Constitution even to
governmental acts.
In Primicias v. Fugoso,133 respondent Mayor applied by analogy Section 1119 of the
Revised Ordinances of 1927 of Manila for the public meeting and assembly organized by
petitioner Primicias.134 Section 1119 requires a Mayors permit for the use of streets and
public places for purposes such as athletic games, sports, or celebration of national
holidays.135 What was questioned was not a law but the Mayors refusal to issue a permit
for the holding of petitioners public meeting.136 Nevertheless, this court recognized the
constitutional right to freedom of speech, to peaceful assembly and to petition for redress of
grievances, albeit not absolute,137 and the petition for mandamus to compel respondent
Mayor to issue the permit was granted.138
In ABS-CBN v. COMELEC, what was assailed was not a law but COMELEC En Banc
Resolution No. 98-1419 where the COMELEC resolved to approve the issuance of a
restraining order to stop ABS-CBN from conducting exit surveys.139 The right to freedom of
expression was similarly upheld in this case and, consequently, the assailed resolution was
nullified and set aside.140
. . . shall be passed abridging. . .
All regulations will have an impact directly or indirectly on expression. The prohibition
against the abridgment of speech should not mean an absolute prohibition against
regulation. The primary and incidental burden on speech must be weighed against a
compelling state interest clearly allowed in the Constitution. The test depends on the
relevant theory of speech implicit in the kind of society framed by our Constitution.
. . . of expression. . .
Our Constitution has also explicitly included the freedom of expression, separate and in
addition to the freedom of speech and of the press provided in the US Constitution. The
word "expression" was added in the 1987 Constitution by Commissioner Brocka for having
a wider scope:
MR. BROCKA: This is a very minor amendment, Mr. Presiding Officer. On Section 9, page
2, line 29, it says: "No law shall be passed abridging the freedom of speech." I would like to
recommend to the Committee the change of the word "speech" to EXPRESSION; or if not,
add the words AND EXPRESSION after the word "speech," because it is more expansive,
it has a wider scope, and it would refer to means of expression other than speech.
THE PRESIDING OFFICER (Mr.Bengzon): What does the Committee say?
FR. BERNAS: "Expression" is more broad than speech. We accept it.
MR. BROCKA: Thank you.
THE PRESIDING OFFICER (Mr.Bengzon): Is it accepted?
FR. BERNAS: Yes.
THE PRESIDING OFFICER (Mr.Bengzon): Is there any objection? (Silence) The Chair
hears none; the amendment is approved.
FR. BERNAS: So, that provision will now read: "No law shall be passed abridging the
freedom of speech, expression or of the press . . . ." 141 Speech may be said to be
inextricably linked to freedom itself as "[t]he right to think is the beginning of freedom, and
speech must be protected from the government because speech is the beginning of
thought."142
II.B.2
Communication is an essential outcome of protected speech. 143 Communication exists
when "(1) a speaker, seeking to signal others, uses conventional actions because he orshe
reasonably believes that such actions will be taken by the audience in the manner intended;
and (2) the audience so takes the actions."144 "[I]n communicative action[,] the hearer may
respond to the claims by . . . either accepting the speech acts claims or opposing them with
criticism or requests for justification."145
Speech is not limited to vocal communication. "[C]onduct is treated as a form of speech
sometimes referred to as symbolic speech[,]"146 such that "when speech and nonspeech Board.157
elements are combined in the same course of conduct, the communicative element of the
conduct may be sufficient to bring into play the [right to freedom of expression]." 147
The right to freedom of expression, thus, applies to the entire continuum of speech from
utterances made to conduct enacted, and even to inaction itself as a symbolic manner of
communication.
In Ebralinag v. The Division Superintendent of Schools of Cebu, 148 students who were
members of the religious sect Jehovahs Witnesses were to be expelled from school for
refusing to salute the flag, sing the national anthem, and recite the patriotic pledge.149 In his
concurring opinion, Justice Cruz discussed how the salute is a symbolic manner of
communication and a valid form of expression.150 He adds that freedom of speech includes
even the right to be silent:
Freedom of speech includes the right to be silent. Aptly has it been said that the Bill of
Rights that guarantees to the individual the liberty to utter what is in his mind also
guarantees to him the liberty not to utter what is not in his mind. The salute is a symbolic
manner of communication that conveys its messageas clearly as the written or spoken
word. As a valid form of expression, it cannot be compelled any more than it can be
prohibited in the face of valid religious objections like those raised in this petition. To
impose it on the petitioners is to deny them the right not to speak when their religion bids
them to be silent. This coercion of conscience has no place in the free society.
The democratic system provides for the accommodation of diverse ideas, including the
unconventional and even the bizarre or eccentric. The will of the majority prevails, but it
cannot regiment thought by prescribing the recitation by rote of its opinions or proscribing
the assertion of unorthodox or unpopular views as inthis case. The conscientious objections
of the petitioners, no less than the impatience of those who disagree with them, are
protected by the Constitution. The State cannot make the individual speak when the soul
within rebels.151
Even before freedom "of expression" was included in Article III, Section 4 of the present
Constitution,this court has applied its precedent version to expressions other than verbal
utterances.
In the 1985 case of Gonzalez v. Chairman Katigbak, 152 petitioners objected to the
classification of the motion picture "Kapit sa Patalim" as "For Adults Only." They contend
that the classification "is without legal and factual basis and is exercised as impermissible
restraint of artistic expression."153 This court recognized that "[m]otion pictures are
important both as a medium for the communication of ideas and the expression of the
artistic impulse."154 It adds that "every writer,actor, or producer, no matter what medium of
expression he may use, should be freed from the censor." 155 This court found that "[the
Boards] perception of what constitutes obscenity appears to be unduly
restrictive."156 However, the petition was dismissed solely on the ground that there were not
enough votes for a ruling of grave abuse of discretion in the classification made by the
II.B.3
Size does matter
The form of expression is just as important as the information conveyed that it forms part of
the expression. The present case is in point.
It is easy to discern why size matters.
First, it enhances efficiency in communication. A larger tarpaulin allows larger fonts which
make it easier to view its messages from greater distances. Furthermore, a larger tarpaulin
makes it easier for passengers inside moving vehicles to read its content. Compared with
the pedestrians, the passengers inside moving vehicles have lesser time to view the
content of a tarpaulin. The larger the fonts and images, the greater the probability that it will
catch their attention and, thus, the greater the possibility that they will understand its
message.
Second, the size of the tarpaulin may underscore the importance of the message to the
reader. From an ordinary persons perspective, those who post their messages in larger
fonts care more about their message than those who carry their messages in smaller
media. The perceived importance given by the speakers, in this case petitioners, to their
cause is also part of the message. The effectivity of communication sometimes relies on
the emphasis put by the speakers and onthe credibility of the speakers themselves.
Certainly, larger segments of the public may tend to be more convinced of the point made
by authoritative figures when they make the effort to emphasize their messages.
Third, larger spaces allow for more messages. Larger spaces, therefore, may translate to
more opportunities to amplify, explain, and argue points which the speakers might want to
communicate. Rather than simply placing the names and images of political candidates and
an expression of support, larger spaces can allow for brief but memorable presentations of
the candidates platforms for governance. Larger spaces allow for more precise inceptions
of ideas, catalyze reactions to advocacies, and contribute more to a more educated and
reasoned electorate. A more educated electorate will increase the possibilities of both good
governance and accountability in our government.
These points become more salient when it is the electorate, not the candidates or the
political parties, that speaks. Too often, the terms of public discussion during elections are
framed and kept hostage by brief and catchy but meaningless sound bites extolling the
character of the candidate. Worse, elections sideline political arguments and privilege the
endorsement by celebrities. Rather than provide obstacles to their speech, government
should in fact encourage it. Between the candidates and the electorate, the latter have the
better incentive to demand discussion of the more important issues. Between the
candidates and the electorate, the former have better incentives to avoid difficult political
standpoints and instead focus on appearances and empty promises.
Large tarpaulins, therefore, are not analogous to time and place. 158 They are fundamentally
part of expression protected under Article III, Section 4 of the Constitution.
II.B.4
There are several theories and schools of thought that strengthen the need to protect the
basic right to freedom of expression.
First, this relates to the right ofthe people to participate in public affairs, including the right
to criticize government actions.
Proponents of the political theory on "deliberative democracy" submit that "substantial,
open, [and] ethical dialogue isa critical, and indeed defining, feature of a good
polity."159 This theory may be considered broad, but it definitely "includes [a] collective
decision making with the participation of all who will beaffected by the decision." 160 It
anchors on the principle that the cornerstone of every democracy is that sovereignty
resides in the people.161 To ensure order in running the states affairs, sovereign powers
were delegated and individuals would be elected or nominated in key government positions
to represent the people. On this note, the theory on deliberative democracy may evolve to
the right of the people to make government accountable. Necessarily, this includes the right
of the people to criticize acts made pursuant to governmental functions.
Speech that promotes dialogue on publicaffairs, or airs out grievances and political
discontent, should thus be protected and encouraged.
Borrowing the words of Justice Brandeis, "it is hazardous to discourage thought, hope and
imagination; that fear breeds repression; that repression breeds hate; that hate menaces
stable government; that the path of safety lies in the opportunity to discuss freely supposed
grievances and proposed remedies."162
In this jurisdiction, this court held that "[t]he interest of society and the maintenance of good
government demand a full discussion of public affairs."163 This court has, thus, adopted the
principle that "debate on public issues should be uninhibited, robust,and wide open . . .
[including even] unpleasantly sharp attacks on government and public officials."164
Second, free speech should be encouraged under the concept of a market place of ideas.
This theory was articulated by Justice Holmes in that "the ultimate good desired is better
reached by [the] free trade in ideas:"165
When men have realized that time has upset many fighting faiths, they may come to
believe even more than they believe the very foundations of their own conduct that the
ultimate good desired is better reached by free trade in ideas - that the best test of truth is
the power of the thought to get itself accepted in the competition of the market, and that
truth is the only ground upon which their wishes safely can be carried out. 166
The way it works, the exposure to the ideas of others allows one to "consider, test, and
develop their own conclusions."167 A free, open, and dynamic market place of ideas is
constantly shaping new ones. This promotes both stability and change where recurring
points may crystallize and weak ones may develop. Of course, free speech is more than
the right to approve existing political beliefs and economic arrangements as it includes, "[t]o
paraphrase Justice Holmes, [the] freedom for the thought that we hate, no less than for the
thought that agrees with us."168 In fact, free speech may "best serve its high purpose when
it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even
stirs people to anger."169 It is in this context that we should guard against any curtailment of
the peoples right to participate in the free trade of ideas.
Third, free speech involves self-expression that enhances human dignity. This right is "a
means of assuring individual self-fulfillment,"170 among others. In Philippine Blooming Mills
Employees Organization v. Philippine Blooming Mills Co., Inc,171 this court discussed as
follows:
The rights of free expression, free assembly and petition, are not only civil rights but also
political rights essential to man's enjoyment of his life, to his happiness and to his full and
complete fulfillment.Thru these freedoms the citizens can participate not merely in the
periodic establishment of the government through their suffrage but also in the
administration of public affairs as well as in the discipline of abusive public officers. The
citizen is accorded these rights so that he can appeal to the appropriate governmental
officers or agencies for redress and protection as well as for the imposition of the lawful
sanctions on erring public officers and employees.172 (Emphasis supplied)
Fourth, expression is a marker for group identity. For one, "[v]oluntary associations perform
[an] important democratic role [in providing] forums for the development of civil skills, for
deliberation, and for the formation of identity and community spirit[,] [and] are largely
immune from [any] governmental interference."173 They also "provide a buffer between
individuals and the state - a free space for the development of individual personality,
distinct group identity, and dissident ideas - and a potential source of opposition to the
state."174 Free speech must be protected as the vehicle to find those who have similar and
shared values and ideals, to join together and forward common goals.
Fifth, the Bill of Rights, free speech included, is supposed to "protect individuals and
minorities against majoritarian abuses perpetrated through [the] framework [of democratic
governance]."175 Federalist framers led by James Madison were concerned about two
potentially vulnerable groups: "the citizenry at large - majorities - who might be tyrannized
or plundered by despotic federal officials"176 and the minorities who may be oppressed by
"dominant factions of the electorate [that] capture [the] government for their own selfish
ends[.]"177 According to Madison, "[i]t is of great importance in a republic not only to guard
the society against the oppression of its rulers, but to guard one part of the society against
the injustice of the other part."178 We should strive to ensure that free speech is protected
especially in light of any potential oppression against those who find themselves in the
fringes on public issues.
Lastly, free speech must be protected under the safety valve theory. 179 This provides that
"nonviolent manifestations of dissent reduce the likelihood of violence[.]"180 "[A] dam about
to burst . . . resulting in the banking up of a menacing flood of sullen anger behind the walls
of restriction"181 has been used to describe the effect of repressing nonviolent outlets. 182 In
order to avoid this situation and prevent people from resorting to violence, there is a need
for peaceful methods in making passionate dissent. This includes "free expression and
political participation"183 in that they can "vote for candidates who share their views, petition
their legislatures to [make or] change laws, . . . distribute literature alerting other citizens of
their concerns[,]"184 and conduct peaceful rallies and other similar acts. 185 Free speech
must, thus, be protected as a peaceful means of achieving ones goal, considering the
possibility that repression of nonviolent dissent may spill over to violent means just to drive
a point.
II.B.5
Every citizens expression with political consequences enjoys a high degree of protection.
Respondents argue that the tarpaulinis election propaganda, being petitioners way of
endorsing candidates who voted against the RH Law and rejecting those who voted for
it.186 As such, it is subject to regulation by COMELEC under its constitutional
mandate.187 Election propaganda is defined under Section 1(4) of COMELEC Resolution
No. 9615 as follows: SECTION 1. Definitions . . .
....
4. The term "political advertisement" or "election propaganda" refers to any matter
broadcasted, published, printed, displayed or exhibited, in any medium, which contain the
name, image, logo, brand, insignia, color motif, initials, and other symbol or graphic
representation that is capable of being associated with a candidate or party, and is intended
to draw the attention of the public or a segment thereof to promote or oppose, directly or
indirectly, the election of the said candidate or candidates to a public office. In broadcast
media, political advertisements may take the form of spots, appearances on TV shows and
radio programs, live or taped announcements, teasers, and other forms of advertising
messages or announcements used by commercial advertisers. Political advertising includes
matters, not falling within the scope of personal opinion, that appear on any Internet
website, including, but not limited to, social networks, blogging sites, and micro-blogging
sites, in return for consideration, or otherwise capable of pecuniary estimation.
On the other hand, petitioners invoke their "constitutional right to communicate their
opinions, views and beliefs about issues and candidates."188 They argue that the tarpaulin
was their statement of approval and appreciation of the named public officials act of voting
against the RH Law, and their criticism toward those who voted in its favor. 189It was "part of
their advocacy campaign against the RH Law,"190 which was not paid for by any candidate
or political party.191 Thus, "the questioned orders which . . . effectively restrain[ed] and
curtail[ed] [their] freedom of expression should be declared unconstitutional and void." 192
This court has held free speech and other intellectual freedoms as "highly ranked in our
scheme of constitutional values."193 These rights enjoy precedence and primacy.194 In
Philippine Blooming Mills, this court discussed the preferred position occupied by freedom
of expression:
Property and property rights can belost thru prescription; but human rights are
imprescriptible. If human rights are extinguished by the passage of time, then the Bill of
Rights is a useless attempt to limit the power of government and ceases to be an
efficacious shield against the tyranny of officials, of majorities, ofthe influential and
powerful, and of oligarchs - political, economic or otherwise.
In the hierarchy of civil liberties, the rights of free expression and of assembly occupy a
preferred position as they are essential to the preservation and vitality of our civil and
political institutions; and such priority "gives these liberties the sanctity and the sanction not
permitting dubious intrusions."195 (Citations omitted)
This primordial right calls for utmost respect, more so "when what may be curtailed is the
dissemination of information to make more meaningful the equally vital right of
suffrage."196 A similar idea appeared in our jurisprudence as early as 1969, which was
Justice Barredos concurring and dissenting opinion in Gonzales v. COMELEC: 197
analysis, and evaluation ofthe permissible scope of restrictions on various categories of
speech. We have ruled, for example, that in our jurisdiction slander or libel, lewd and
obscene speech, as well as "fighting words" are not entitled to constitutional protection and
may be penalized.199 (Citations omitted)
We distinguish between politicaland commercial speech. Political speech refers to speech
"both intended and received as a contribution to public deliberation about some
issue,"200 "foster[ing] informed and civicminded deliberation."201 On the other hand,
commercial speech has been defined as speech that does "no more than propose a
commercial transaction."202 The expression resulting from the content of the tarpaulin is,
however, definitely political speech. In Justice Brions dissenting opinion, he discussed that
"[t]he content of the tarpaulin, as well as the timing of its posting, makes it subject of the
regulations in RA 9006 and Comelec Resolution No. 9615."203 He adds that "[w]hile indeed
the RH issue, by itself,is not an electoralmatter, the slant that the petitioners gave the issue
converted the non-election issue into a live election one hence, Team Buhay and Team
Patay and the plea to support one and oppose the other."204

I like to reiterate over and over, for it seems this is the fundamental point others miss, that
While the tarpaulin may influence the success or failure of the named candidates and
genuine democracy thrives only where the power and right of the people toelect the men to
political parties, this does not necessarily mean it is election propaganda. The tarpaulin was
whom they would entrust the privilege to run the affairs of the state exist. In the language of
not paid for or posted "in return for consideration" by any candidate, political party, or party-
the declaration of principles of our Constitution, "The Philippines is a republican state.
list group.
Sovereignty resides in the people and all government authority emanates from them"
(Section 1, Article II). Translating this declaration into actuality, the Philippines is a republic
because and solely because the people in it can be governed only by officials whom they The second paragraph of Section 1(4) of COMELEC Resolution No. 9615, or the rules and
themselves have placed in office by their votes. And in it is on this cornerstone that I hold it regulations implementing Republic Act No. 9006 as an aid to interpret the law insofar as the
tobe self-evident that when the freedoms of speech, press and peaceful assembly and facts of this case requires, states:
redress of grievances are being exercised in relation to suffrage or asa means to enjoy the
inalienable right of the qualified citizen to vote, they are absolute and timeless. If our
4. The term "political advertisement" or "election propaganda" refers to any matter
democracy and republicanism are to be worthwhile, the conduct of public affairs by our
broadcasted, published, printed, displayed or exhibited, in any medium, which contain the
officials must be allowed to suffer incessant and unabating scrutiny, favorable or
name, image, logo, brand, insignia, color motif, initials, and other symbol or graphic
unfavorable, everyday and at all times. Every holder of power in our government must be
representation that is capable of being associated with a candidate or party, and is intended
ready to undergo exposure any moment of the day or night, from January to December
to draw the attention of the public or a segment thereof to promote or oppose, directly or
every year, as it is only in this way that he can rightfully gain the confidence of the people. I
indirectly, the election of the said candidate or candidates to a public office. In broadcast
have no patience for those who would regard public dissection of the establishment as an
media, political advertisements may take the form of spots, appearances on TV shows and
attribute to be indulged by the people only at certain periods of time. I consider the
radio programs, live or taped announcements, teasers, and other forms of advertising
freedoms of speech, press and peaceful assembly and redress of grievances, when
messages or announcements used by commercial advertisers. Political advertising includes
exercised in the name of suffrage, as the very means by which the right itself to vote can
matters, not falling within the scope of personal opinion, that appear on any Internet
only be properly enjoyed.It stands to reason therefore, that suffrage itself would be next to
website, including, but not limited to, social networks, blogging sites, and micro-blogging
useless if these liberties cannot be untrammelled [sic] whether as to degree or
sites, in return for consideration, or otherwise capable of pecuniary estimation. (Emphasis
time.198 (Emphasis supplied)
supplied)

Not all speech are treated the same. In Chavez v. Gonzales, this court discussed that some
It is clear that this paragraph suggests that personal opinions are not included, while
types of speech may be subject to regulation:
sponsored messages are covered.

Some types of speech may be subjected to some regulation by the State under its
Thus, the last paragraph of Section 1(1) of COMELEC Resolution No. 9615 states:
pervasive police power, in order that it may not be injurious to the equal right of others or
those of the community or society. The difference in treatment is expected because the
relevant interests of one type of speech, e.g., political speech, may vary from those of SECTION 1. Definitions - As used in this Resolution:
another, e.g., obscene speech. Distinctionshave therefore been made in the treatment,
1. The term "election campaign" or "partisan political activity" refers to an act designed to
promote the election or defeat of a particular candidate or candidates to a public office, and
shall include any of the following:
....
Personal opinions, views, and preferences for candidates, contained in blogs shall not be
considered acts of election campaigning or partisan politicalactivity unless expressed by
government officials in the Executive Department, the Legislative Department, the
Judiciary, the Constitutional Commissions, and members of the Civil Service.
In any event, this case does not refer to speech in cyberspace, and its effects and
parameters should be deemed narrowly tailored only in relation to the facts and issues in
this case. It also appears that such wording in COMELEC Resolution No. 9615 does not
similarly appear in Republic Act No. 9006, the law it implements.
We should interpret in this manner because of the value of political speech.
As early as 1918, in United States v. Bustos,205 this court recognized the need for full
discussion of public affairs. We acknowledged that free speech includes the right to criticize
the conduct of public men:
The interest of society and the maintenance of good government demand a full discussion
of public affairs. Complete liberty to comment on the conduct of public men is a scalpel in
the case of free speech. The sharp incision of its probe relieves the abscesses of official
dom. Men in public life may suffer under a hostile and an unjust accusation; the wound can
be assuaged with the balm of a clear conscience. A public officer must not be too thin-
skinned with reference to comment upon his official acts. Only thus can the intelligence and
dignity of the individual be exalted.206
Subsequent jurisprudence developed the right to petition the government for redress of
grievances, allowing for criticism, save for some exceptions. 207 In the 1951 case of
Espuelas v. People,208 this court noted every citizens privilege to criticize his or her
government, provided it is "specific and therefore constructive, reasoned or tempered, and
not a contemptuous condemnation of the entire government set-up."209
The 1927 case of People v. Titular210 involved an alleged violation of the Election Law
provision "penaliz[ing] the anonymous criticism of a candidate by means of posters or
circulars."211 This court explained that it is the posters anonymous character that is being
penalized.212 The ponente adds that he would "dislike very muchto see this decision made
the vehicle for the suppression of public opinion."213
In 1983, Reyes v. Bagatsing214 discussed the importance of allowing individuals to vent
their views. According to this court, "[i]ts value may lie in the fact that there may be
something worth hearing from the dissenter [and] [t]hat is to ensurea true ferment of
ideas."215
Allowing citizens to air grievances and speak constructive criticisms against their
government contributes to every societys goal for development. It puts forward matters that
may be changed for the better and ideas that may be deliberated on to attain that purpose.
Necessarily, it also makes the government accountable for acts that violate constitutionally
protected rights.
In 1998, Osmea v. COMELEC found Section 11(b) of Republic Act No. 6646, which
prohibits mass media from selling print space and air time for campaign except to the
COMELEC, to be a democracy-enhancing measure.216This court mentioned how
"discussion of public issues and debate on the qualifications of candidates in an election
are essential to the proper functioning of the government established by our
Constitution."217
As pointed out by petitioners, "speech serves one of its greatest public purposes in the
context of elections when the free exercise thereof informs the people what the issues are,
and who are supporting what issues."218 At the heart of democracy is every advocates right
to make known what the people need to know, 219 while the meaningful exercise of ones
right of suffrage includes the right of every voter to know what they need to know in order to
make their choice.
Thus, in Adiong v. COMELEC,220 this court discussed the importance of debate on public
issues, and the freedom of expression especially in relation to information that ensures the
meaningful exercise of the right of suffrage:
We have adopted the principle that debate on public issues should be uninhibited, robust,
and wide open and that it may well include vehement, caustic and sometimes unpleasantly
sharp attacks on government and public officials. Too many restrictions will deny to people
the robust, uninhibited, and wide open debate, the generating of interest essential if our
elections will truly be free, clean and honest.
We have also ruled that the preferred freedom of expression calls all the more for the
utmost respect when what may be curtailed is the dissemination of information to make
more meaningful the equally vital right of suffrage.221(Emphasis supplied, citations omitted)
Speech with political consequences isat the core of the freedom of expression and must be
protected by this court.
Justice Brion pointed out that freedomof expression "is not the god of rights to which all
other rights and even government protection of state interest must bow."222
The right to freedom of expression isindeed not absolute. Even some forms of protected
speech are still subjectto some restrictions. The degree of restriction may depend on
whether the regulation is content-based or content-neutral.223 Content-based regulations
can either be based on the viewpoint of the speaker or the subject of the expression.
II.B.6
Content-based regulation Even with the clear and present danger test, respondents failed to justify the regulation.
There is no compelling and substantial state interest endangered by the posting of the
tarpaulinas to justify curtailment of the right of freedom of expression. There is no reason
COMELEC contends that the order for removal of the tarpaulin is a content-neutral
for the state to minimize the right of non-candidate petitioners to post the tarpaulin in their
regulation. The order was made simply because petitioners failed to comply with the
private property. The size of the tarpaulin does not affect anyone elses constitutional rights.
maximum size limitation for lawful election propaganda.224

Content-based restraint or censorship refers to restrictions "based on the subject matter of

On the other hand, petitioners argue that the present size regulation is content-based as it
the utterance or speech."232 In contrast, content-neutral regulation includes controls merely
applies only to political speech and not to other forms of speech such as commercial
on the incidents of the speech such as time, place, or manner of the speech.233
speech.225 "[A]ssuming arguendo that the size restriction sought to be applied . . . is a mere
time, place, and manner regulation, its still unconstitutional for lack of a clear and
reasonable nexus with a constitutionally sanctioned objective." 226 This court has attempted to define "content-neutral" restraints starting with the 1948 case of
Primicias v. Fugoso.234The ordinance in this case was construed to grant the Mayor
discretion only to determine the public places that may be used for the procession
The regulation may reasonably be considered as either content-neutral or content-
ormeeting, but not the power to refuse the issuance of a permit for such procession or
based.227 Regardless, the disposition of this case will be the same. Generally, compared
meeting.235 This court explained that free speech and peaceful assembly are "not absolute
with other forms of speech, the proposed speech is content-based.
for it may be so regulated that it shall not beinjurious to the equal enjoyment of others
having equal rights, nor injurious to the rights of the community or society."236
As pointed out by petitioners, the interpretation of COMELEC contained in the questioned
order applies only to posters and tarpaulins that may affect the elections because they
The earlier case of Calalang v. Williams237 involved the National Traffic Commission
deliver opinions that shape both their choices. It does not cover, for instance, commercial
resolution that prohibited the passing of animal-drawn vehicles along certain roads at
speech.
specific hours.238 This court similarly discussed police power in that the assailed rules carry
outthe legislative policy that "aims to promote safe transit upon and avoid obstructions on
Worse, COMELEC does not point to a definite view of what kind of expression of non- national roads, in the interest and convenience of the public."239
candidates will be adjudged as "election paraphernalia." There are no existing bright lines
to categorize speech as election-related and those that are not. This is especially true when
As early as 1907, United States v. Apurado240 recognized that "more or less disorder will
citizens will want to use their resources to be able to raise public issues that should be
mark the public assembly of the people to protest against grievances whether real or
tackled by the candidates as what has happened in this case. COMELECs discretion to
imaginary, because on such occasions feeling is always wrought to a high pitch of
limit speech in this case is fundamentally unbridled.
excitement. . . ."241 It is with this backdrop that the state is justified in imposing restrictions
on incidental matters as time, place, and manner of the speech.
Size limitations during elections hit ata core part of expression. The content of the tarpaulin
is not easily divorced from the size of its medium.
In the landmark case of Reyes v. Bagatsing, this court summarized the steps that permit
applicants must follow which include informing the licensing authority ahead of time as
Content-based regulation bears a heavy presumption of invalidity, and this court has used regards the date, public place, and time of the assembly. 242 This would afford the public
the clear and present danger rule as measure.228 Thus, in Chavez v. Gonzales: official time to inform applicants if there would be valid objections, provided that the clear
and present danger test is the standard used for his decision and the applicants are given
the opportunity to be heard.243 This ruling was practically codified in Batas Pambansa No.
A content-based regulation, however, bears a heavy presumption of invalidity and is
880, otherwise known as the Public Assembly Act of 1985.
measured against the clear and present danger rule. The latter will pass constitutional
muster only if justified by a compelling reason, and the restrictions imposedare neither
overbroad nor vague.229 (Citations omitted) Subsequent jurisprudence have upheld Batas Pambansa No. 880 as a valid content-neutral
regulation. In the 2006 case of Bayan v. Ermita,244 this court discussed how Batas
Pambansa No. 880 does not prohibit assemblies but simply regulates their time, place, and
Under this rule, "the evil consequences sought to be prevented must be substantive, manner.245 In 2010, this court found in Integrated Bar of the Philippines v. Atienza 246 that
extremely serious and the degree of imminence extremely high." 230 "Only when the
respondent Mayor Atienza committed grave abuse of discretion when he modified the rally
challenged act has overcome the clear and present danger rule will it pass constitutional permit by changing the venue from Mendiola Bridge to Plaza Miranda without first affording
muster, with the government having the burden of overcoming the presumed petitioners the opportunity to be heard.247
unconstitutionality."231
We reiterate that the regulation involved at bar is content-based. The tarpaulin content is
not easily divorced from the size of its medium.
II.B.7
Justice Carpio and Justice Perlas-Bernabe suggest that the provisions imposing a size limit
for tarpaulins are content-neutral regulations as these "restrict the mannerby which speech
is relayed but not the content of what is conveyed."248
If we apply the test for content-neutral regulation, the questioned acts of COMELEC will not
pass the three requirements for evaluating such restraints on freedom of speech. 249 "When
the speech restraints take the form of a content-neutral regulation, only a substantial
governmental interest is required for its validity,"250 and it is subject only to the intermediate
approach.251
This intermediate approach is based on the test that we have prescribed in several
cases.252 A content-neutral government regulation is sufficiently justified:
[1] if it is within the constitutional power of the Government; [2] if it furthers an important or
substantial governmental interest; [3] if the governmental interest is unrelated to the
suppression of free expression; and [4] if the incident restriction on alleged [freedom of
speech & expression] is no greater than is essential to the furtherance of that interest. 253
On the first requisite, it is not within the constitutional powers of the COMELEC to regulate
the tarpaulin. As discussed earlier, this is protected speech by petitioners who are non-
candidates. On the second requirement, not only must the governmental interest be
important or substantial, it must also be compelling as to justify the restrictions made.
Compelling governmental interest would include constitutionally declared principles. We
have held, for example, that "the welfare of children and the States mandate to protect and
care for them, as parens patriae,254 constitute a substantial and compelling government
interest in regulating . . . utterances in TV broadcast."255
Respondent invokes its constitutional mandate to ensure equal opportunity for public
information campaigns among candidates in connection with the holding of a free, orderly,
honest, peaceful, and credible election.256
Justice Brion in his dissenting opinion discussed that "[s]ize limits to posters are necessary
to ensure equality of public information campaigns among candidates, as allowing posters
with different sizes gives candidates and their supporters the incentive to post larger
posters[,] [and] [t]his places candidates with more money and/or with deep-pocket
supporters at an undue advantage against candidates with more humble financial
capabilities."257
First, Adiong v. COMELEC has held that this interest is "not as important as the right of [a
private citizen] to freely express his choice and exercise his right of free speech." 258 In any
case, faced with both rights to freedom of speech and equality, a prudent course would be
to "try to resolve the tension in a way that protects the right of participation." 259
Second, the pertinent election lawsrelated to private property only require that the private
property owners consent be obtained when posting election propaganda in the
property.260 This is consistent with the fundamental right against deprivation of property
without due process of law.261 The present facts do not involve such posting of election
propaganda absent consent from the property owner. Thus, this regulation does not apply
in this case.
Respondents likewise cite the Constitution262 on their authority to recommend effective
measures to minimize election spending. Specifically, Article IX-C, Section 2(7) provides:
Sec. 2. The Commission on Elections shall exercise the following powers and functions:
....
(7) Recommend to the Congress effective measures to minimize election spending,
including limitation of places where propaganda materials shall be posted, and to prevent
and penalize all forms of election frauds, offenses, malpractices, and nuisance candidates.
(Emphasis supplied) This does not qualify as a compelling and substantial government
interest to justify regulation of the preferred right to freedom of expression.
The assailed issuances for the removal of the tarpaulin are based on the two feet (2) by
three feet (3) size limitation under Section 6(c) of COMELEC Resolution No. 9615. This
resolution implements the Fair Election Act that provides for the same size limitation. 263
This court held in Adiong v. COMELEC that "[c]ompared to the paramount interest of the
State in guaranteeing freedom of expression, any financial considerations behind the
regulation are of marginal significance."264 In fact, speech with political consequences, as in
this case, should be encouraged and not curtailed. As petitioners pointed out, the size
limitation will not serve the objective of minimizing election spending considering there is no
limit on the number of tarpaulins that may be posted.265
The third requisite is likewise lacking. We look not only at the legislative intent or motive in
imposing the restriction, but more so at the effects of such restriction, if implemented. The
restriction must not be narrowly tailored to achieve the purpose. It must be demonstrable. It
must allow alternative avenues for the actor to make speech.
In this case, the size regulation is not unrelated to the suppression of speech. Limiting the
maximum sizeof the tarpaulin would render ineffective petitioners message and violate
their right to exercise freedom of expression.
The COMELECs act of requiring the removal of the tarpaulin has the effect of dissuading
expressions with political consequences. These should be encouraged, more so when
exercised to make more meaningful the equally important right to suffrage.
The restriction in the present case does not pass even the lower test of intermediate
scrutiny for content-neutral regulations.
The action of the COMELEC in thiscase is a strong deterrent to further speech by the
electorate. Given the stature of petitioners and their message, there are indicators that this
will cause a "chilling effect" on robust discussion during elections.
The form of expression is just as important as the message itself. In the words of Marshall
McLuhan, "the medium is the message."266 McLuhans colleague and mentor Harold Innis
has earlier asserted that "the materials on which words were written down have often
counted for more than the words themselves."267
III
Freedom of expression and equality
III.A
The possibility of abuse
Of course, candidates and political parties do solicit the help of private individuals for the
endorsement of their electoral campaigns.
On the one extreme, this can take illicit forms such as when endorsement materials in the
form of tarpaulins, posters, or media advertisements are made ostensibly by "friends" but in
reality are really paid for by the candidate or political party. This skirts the constitutional
value that provides for equal opportunities for all candidates.
However, as agreed by the parties during the oral arguments in this case, this is not the
situation that confronts us. In such cases, it will simply be a matter for investigation and
proof of fraud on the part of the COMELEC.
The guarantee of freedom of expression to individuals without any relationship to any
political candidate should not be held hostage by the possibility of abuse by those seeking
to be elected. It is true that there can be underhanded, covert, or illicit dealings so as to
hide the candidates real levels of expenditures. However, labelling all expressions of
private parties that tend to have an effect on the debate in the elections as election
paraphernalia would be too broad a remedy that can stifle genuine speech like in this case.
Instead, to address this evil, better and more effective enforcement will be the least
restrictive means to the fundamental freedom.
On the other extreme, moved by the credentials and the message of a candidate, others
will spend their own resources in order to lend support for the campaigns. This may be
without agreement between the speaker and the candidate or his or her political party. In
lieu of donating funds to the campaign, they will instead use their resources directly in a
way that the candidate or political party would have doneso. This may effectively skirt the
constitutional and statutory limits of campaign spending.
Again, this is not the situation in this case.
The message of petitioners in thiscase will certainly not be what candidates and political
parties will carry in their election posters or media ads. The message of petitioner, taken as
a whole, is an advocacy of a social issue that it deeply believes. Through rhetorical devices,
it communicates the desire of Diocese that the positions of those who run for a political
position on this social issue be determinative of how the public will vote. It primarily
advocates a stand on a social issue; only secondarily even almost incidentally will
cause the election or non-election of a candidate.
The twin tarpaulins consist of satire of political parties. Satire is a "literary form that employs
such devices as sarcasm, irony and ridicule to deride prevailing vices or follies,"268 and this
may target any individual or group in society, private and government alike. It seeks to
effectively communicate a greater purpose, often used for "political and social
criticism"269 "because it tears down facades, deflates stuffed shirts, and unmasks hypocrisy.
. . . Nothing is more thoroughly democratic than to have the high-and-mighty lampooned
and spoofed."270 Northrop Frye, wellknown in this literary field, claimed that satire had two
defining features: "one is wit or humor founded on fantasy or a sense of the grotesque and
absurd, the other is an object of attack."271 Thus, satire frequently uses exaggeration,
analogy, and other rhetorical devices.
The tarpaulins exaggerate. Surely, "Team Patay" does not refer to a list of dead individuals
nor could the Archbishop of the Diocese of Bacolod have intended it to mean that the entire
plan of the candidates in his list was to cause death intentionally. The tarpaulin caricatures
political parties and parodies the intention of those in the list. Furthermore, the list of "Team
Patay" is juxtaposed with the list of "Team Buhay" that further emphasizes the theme of its
author: Reproductive health is an important marker for the church of petitioners to endorse.
The messages in the tarpaulins are different from the usual messages of candidates.
Election paraphernalia from candidates and political parties are more declarative and
descriptive and contain no sophisticated literary allusion to any social objective. Thus, they
usually simply exhort the public to vote for a person with a brief description of the attributes
of the candidate. For example "Vote for [x], Sipag at Tiyaga," "Vote for [y], Mr. Palengke,"
or "Vote for [z], Iba kami sa Makati."
This courts construction of the guarantee of freedom of expression has always been wary
of censorship or subsequent punishment that entails evaluation of the speakers viewpoint
or the content of ones speech. This is especially true when the expression involved has
political consequences. In this case, it hopes to affect the type of deliberation that happens
during elections. A becoming humility on the part of any human institution no matter how
endowed with the secular ability to decide legal controversies with finality entails that we
are not the keepers of all wisdom.
Humanitys lack of omniscience, even acting collectively, provides space for the weakest
dissent. Tolerance has always been a libertarian virtue whose version is embedded in our
Billof Rights. There are occasional heretics of yesterday that have become our visionaries.
Heterodoxies have always given us pause. The unforgiving but insistent nuance that the
majority surely and comfortably disregards provides us with the checks upon reality that
may soon evolve into creative solutions to grave social problems. This is the utilitarian
version. It could also be that it is just part of human necessity to evolve through being able
to express or communicate.
However, the Constitution we interpret is not a theoretical document. It contains other
provisions which, taken together with the guarantee of free expression, enhances each
others value. Among these are the provisions that acknowledge the idea of equality. In
shaping doctrine construing these constitutional values, this court needs to exercise
extraordinary prudence and produce narrowly tailored guidance fit to the facts as given so
as not to unwittingly cause the undesired effect of diluting freedoms as exercised in reality
and, thus, render them meaningless.
III.B.
Speech and equality:
Some considerations We first establish that there are two paradigms of free speech that
separate at the point of giving priority to equality vis--vis liberty.272
In an equality-based approach, "politically disadvantaged speech prevails over regulation[,]
but regulation promoting political equality prevails over speech." 273 This view allows the
government leeway to redistribute or equalize speaking power, such as protecting, even
implicitly subsidizing, unpopular or dissenting voices often systematically subdued within
societys ideological ladder.274 This view acknowledges that there are dominant political
actors who, through authority, power, resources, identity, or status, have capabilities that
may drown out the messages of others. This is especially true in a developing or emerging
economy that is part of the majoritarian world like ours.
The question of libertarian tolerance
This balance between equality and the ability to express so as to find ones authentic self or
to participate in the self determination of ones communities is not new only to law. It has
always been a philosophical problematique.
In his seminal work, Repressive Tolerance, philosopher and social theorist Herbert
Marcuse recognized how institutionalized inequality exists as a background limitation,
rendering freedoms exercised within such limitation as merely "protect[ing] the already
established machinery of discrimination."275 In his view, any improvement "in the normal
course of events" within an unequal society, without subversion, only strengthens existing
interests of those in power and control.276
In other words, abstract guarantees of fundamental rights like freedom of expression may
become meaningless if not taken in a real context. This tendency to tackle rights in the
abstract compromises liberties. In his words:
Liberty is self-determination, autonomythis is almost a tautology, but a tautology which
results from a whole series of synthetic judgments. It stipulates the ability to determine
ones own life: to be able to determine what to do and what not to do, what to suffer and
what not. But the subject of this autonomy is never the contingent, private individual as that
which he actually is or happens to be; it is rather the individual as a human being who is
capable of being free with the others. And the problem of making possible such a harmony
between every individual liberty and the other is not that of finding a compromise between
competitors, or between freedom and law, between general and individual interest,
common and private welfare in an established society, but of creating the society in which
man is no longer enslaved by institutions which vitiate self-determination from the
beginning. In other words, freedom is still to be created even for the freest of the existing
societies.277 (Emphasis in the original)
Marcuse suggests that the democratic argument with all opinions presented to and
deliberated by the people "implies a necessary condition, namely, that the people must
be capable of deliberating and choosing on the basis of knowledge, that they must have
access to authentic information, and that, on this basis, their evaluation must be the result
of autonomous thought."278 He submits that "[d]ifferent opinions and philosophies can no
longer compete peacefully for adherence and persuasion on rational grounds: the
marketplace of ideas is organized and delimited by those who determine the national and
the individual interest."279 A slant toward left manifests from his belief that "there is a
natural right of resistance for oppressed and overpowered minorities to use extralegal
means if the legal ones have proved to be inadequate."280 Marcuse, thus, stands for an
equality that breaks away and transcends from established hierarchies, power structures,
and indoctrinations. The tolerance of libertarian society he refers to as "repressive
tolerance."
Legal scholars
The 20th century also bears witness to strong support from legal scholars for "stringent
protections of expressive liberty,"281 especially by political egalitarians. Considerations such
as "expressive, deliberative, and informational interests,"282 costs or the price of expression,
and background facts, when taken together, produce bases for a system of stringent
protections for expressive liberties.283
Many legal scholars discuss the interest and value of expressive liberties. Justice Brandeis
proposed that "public discussion is a political duty." 284 Cass Sustein placed political speech
on the upper tier of his twotier model for freedom of expression, thus, warranting stringent
protection.285 He defined political speech as "both intended and received as a contribution
to public deliberation about some issue."286
But this is usually related also tofair access to opportunities for such liberties. 287 Fair access
to opportunity is suggested to mean substantive equality and not mere formal equalitysince
"favorable conditions for realizing the expressive interest will include some assurance of the
resources required for expression and some guarantee that efforts to express views on
matters of common concern will not be drowned out by the speech of betterendowed
citizens."288 Justice Brandeis solution is to "remedy the harms of speech with more
speech."289 This view moves away from playing down the danger as merely exaggerated,
toward "tak[ing] the costs seriously and embrac[ing] expression as the preferred strategy
for addressing them."290 However, in some cases, the idea of more speech may not be
enough. Professor Laurence Tribe observed the need for context and "the specification of
substantive values before [equality] has full meaning."291 Professor Catherine A. MacKinnon
adds that "equality continues to be viewed in a formal rather than a substantive
sense."292 Thus, more speech can only mean more speech from the few who are dominant
rather than those who are not.
Our jurisprudence
This court has tackled these issues.
Osmea v. COMELEC affirmed National Press Club v. COMELEC on the validity of Section
11(b) ofthe Electoral Reforms Law of 1987.293 This section "prohibits mass media from
selling or giving free of charge print space or air time for campaign or other political
purposes, except to the Commission on Elections."294 This court explained that this
provision only regulates the time and manner of advertising in order to ensure media
equality among candidates.295 This court grounded this measure on constitutional
provisions mandating political equality:296 Article IX-C, Section 4
Section 4. The Commission may, during the election period, supervise or regulate the
enjoyment or utilization of all franchises or permits for the operation of transportation and
other public utilities, media of communication or information, all grants, special privileges, or
concessions granted by the Government or any subdivision, agency, or instrumentality
thereof, including any government-owned or controlled corporation or its subsidiary. Such
supervision or regulation shall aim to ensure equal opportunity, time, and space, and the
right to reply, including reasonable, equal rates therefor, for public information campaigns
and forums among candidates in connection with the objective of holding free, orderly,
honest, peaceful, and credible elections. (Emphasis supplied)
Article XIII, Section 1
Section 1. The Congress shall give highest priorityto the enactment of measures that
protect and enhance the right of all the people to human dignity, reducesocial, economic,
and political inequalities, and remove cultural inequities by equitably diffusing wealth and
political power for the common good.
To this end, the State shall regulate the acquisition, ownership, use, and disposition of
property and its increments. (Emphasis supplied)
Article II, Section 26
Section 26. The State shall guarantee equal access to opportunities for public service, and
prohibit political dynasties as may be defined by law. (Emphasis supplied)
Thus, in these cases, we have acknowledged the Constitutions guarantee for more
substantive expressive freedoms that take equality of opportunities into consideration
during elections.
The other view
However, there is also the other view. This is that considerations of equality of opportunity
or equality inthe ability of citizens as speakers should not have a bearing in free speech
doctrine. Under this view, "members of the public are trusted to make their own individual
evaluations of speech, and government is forbidden to intervene for paternalistic or
redistributive reasons . . . [thus,] ideas are best left to a freely competitive ideological
market."297 This is consistent with the libertarian suspicion on the use of viewpoint as well
as content to evaluate the constitutional validity or invalidity of speech.
The textual basis of this view is that the constitutional provision uses negative rather than
affirmative language. It uses speech as its subject and not speakers. 298 Consequently,
the Constitution protects free speech per se, indifferent to the types, status, or associations
of its speakers.299 Pursuant to this, "government must leave speakers and listeners in the
private order to their own devices in sorting out the relative influence of speech." 300
Justice Romeros dissenting opinion in Osmea v. COMELEC formulates this view that
freedom of speech includes "not only the right to express ones views, but also other
cognate rights relevant to the free communication [of] ideas, not excluding the right to be
informed on matters of public concern."301 She adds:
And since so many imponderables may affect the outcome of elections qualifications of
voters and candidates, education, means of transportation, health, public discussion,
private animosities, the weather, the threshold of a voters resistance to pressure the
utmost ventilation of opinion of men and issues, through assembly, association and
organizations, both by the candidate and the voter, becomes a sine qua non for elections to
truly reflect the will of the electorate.302 (Emphasis supplied)
Justice Romeros dissenting opinion cited an American case, if only to emphasize free
speech primacy such that"courts, as a rule are wary to impose greater restrictions as to any
attempt to curtail speeches with political content,"303 thus:
the concept that the government may restrict the speech of some elements in our society in
order to enhance the relative voice of the others is wholly foreign to the First Amendment
which was designed to "secure the widest possible dissemination of information from
diverse and antagonistic sources" and "to assure unfettered interchange of ideas for the
bringing about of political and social changes desired by the people."304
This echoes Justice Oliver Wendell Holmes submission "that the market place of ideas is
still the best alternative to censorship."305
Parenthetically and just to provide the whole detail of the argument, the majority of the US
Supreme Court in the campaign expenditures case of Buckley v. Valeo "condemned
restrictions (even if content-neutral) on expressive liberty imposed in the name of
enhanc[ing] the relative voice of others and thereby equaliz[ing] access to the political
arena."306 The majority did not use the equality-based paradigm.
One flaw of campaign expenditurelimits is that "any limit placed on the amount which a
person can speak, which takes out of his exclusive judgment the decision of when enough
is enough, deprives him of his free speech."307
Another flaw is how "[a]ny quantitative limitation on political campaigning inherently
constricts the sum of public information and runs counter to our profound national
commitment that debate on public issues should be uninhibited, robust, and wide-open."308
In fact, "[c]onstraining those who have funds or have been able to raise funds does not
ease the plight of those without funds in the first place . . . [and] even if ones main concern
isslowing the increase in political costs, it may be more effective torely on market forces
toachieve that result than on active legal intervention."309 According to Herbert Alexander,
"[t]o oppose limitations is not necessarily to argue that the skys the limit [because in] any
campaign there are saturation levels and a point where spending no longer pays off in
votes per dollar."310
III. C.
When private speech amounts
to election paraphernalia
The scope of the guarantee of free expression takes into consideration the constitutional
respect for human potentiality and the effect of speech. It valorizes the ability of human
beings to express and their necessity to relate. On the other hand, a complete guarantee
must also take into consideration the effects it will have in a deliberative democracy.
Skewed distribution of resources as well as the cultural hegemony of the majority may have
the effect of drowning out the speech and the messages of those in the minority. In a
sense, social inequality does have its effect on the exercise and effect of the guarantee of
free speech. Those who have more will have better access to media that reaches a wider
audience than those who have less. Those who espouse the more popular ideas will have
better reception than the subversive and the dissenters of society.To be really heard and
understood, the marginalized view normally undergoes its own degree of struggle.
The traditional view has been to tolerate the viewpoint of the speaker and the content of his
or her expression. This view, thus, restricts laws or regulation that allows public officials to
make judgments of the value of such viewpoint or message content. This should still be the
principal approach.
However, the requirements of the Constitution regarding equality in opportunity must
provide limits to some expression during electoral campaigns.
Thus clearly, regulation of speech in the context of electoral campaigns made by
candidates or the members of their political parties or their political parties may be
regulated as to time, place, and manner. This is the effect of our rulings in Osmea v.
COMELEC and National Press Club v. COMELEC.
Regulation of speech in the context of electoral campaigns made by persons who are not
candidates or who do not speak as members of a political party which are, taken as a
whole, principally advocacies of a social issue that the public must consider during
elections is unconstitutional. Such regulation is inconsistent with the guarantee of according
the fullest possible range of opinions coming from the electorate including those that can
catalyze candid, uninhibited, and robust debate in the criteria for the choice of a candidate.
This does not mean that there cannot be a specie of speech by a private citizen which will
not amount toan election paraphernalia to be validly regulated by law.
Regulation of election paraphernalia will still be constitutionally valid if it reaches into
speech of persons who are not candidates or who do not speak as members of a political
party if they are not candidates, only if what is regulated is declarative speech that, taken
as a whole, has for its principal object the endorsement of a candidate only. The regulation
(a) should be provided by law, (b) reasonable, (c) narrowly tailored to meet the objective of
enhancing the opportunity of all candidates to be heard and considering the primacy of the
guarantee of free expression, and (d) demonstrably the least restrictive means to achieve
that object. The regulation must only be with respect to the time, place, and manner of the
rendition of the message. In no situation may the speech be prohibited or censored onthe
basis of its content. For this purpose, it will notmatter whether the speech is made with or
on private property.
This is not the situation, however, in this case for two reasons. First, as discussed, the
principal message in the twin tarpaulins of petitioners consists of a social advocacy.
Second, as pointed out in the concurring opinion of Justice Antonio Carpio, the present law
Section 3.3 of Republic Act No. 9006 and Section 6(c) of COMELEC Resolution No.
9615 if applied to this case, will not pass the test of reasonability. A fixed size for election
posters or tarpaulins without any relation to the distance from the intended average
audience will be arbitrary. At certain distances, posters measuring 2 by 3 feet could no
longer be read by the general public and, hence, would render speech meaningless. It will
amount to the abridgement of speech with political consequences.
IV
Right to property
Other than the right to freedom of expression311 and the meaningful exercise of the right to Section 11 of Rep. Act 6646 is so encompassing and invasive that it prohibits the posting or
suffrage,312 the present case also involves ones right to property.313 display of election propaganda in any place, whether public or private, except inthe
common poster areas sanctioned by COMELEC. This means that a private person cannot
post his own crudely prepared personal poster on his own front dooror on a post in his yard.
Respondents argue that it is the right of the state to prevent the circumvention of
While the COMELEC will certainly never require the absurd, there are no limits to what
regulations relating to election propaganda by applying such regulations to private
overzealous and partisan police officers, armed with a copy of the statute or regulation,
individuals.314 Certainly, any provision or regulation can be circumvented. But we are not
may do.319 Respondents ordered petitioners, who are private citizens, to remove the
confronted with this possibility. Respondents agree that the tarpaulin in question belongs to
tarpaulin from their own property. The absurdity of the situation is in itself an indication of
petitioners. Respondents have also agreed, during the oral arguments, that petitioners were
the unconstitutionality of COMELECs interpretation of its powers.
neither commissioned nor paid by any candidate or political party to post the material on
their walls.
Freedom of expression can be intimately related with the right to property. There may be no
expression when there is no place where the expression may be made. COMELECs
Even though the tarpaulin is readily seen by the public, the tarpaulin remains the private
infringement upon petitioners property rights as in the present case also reaches out to
property of petitioners. Their right to use their property is likewise protected by the
infringement on their fundamental right to speech.
Constitution.

Respondents have not demonstrated thatthe present state interest they seek to promote
In Philippine Communications Satellite Corporation v. Alcuaz: 315
justifies the intrusion into petitioners property rights. Election laws and regulations must be
reasonable. It must also acknowledge a private individuals right to exercise property rights.
Any regulation, therefore, which operates as an effective confiscation of private property or Otherwise, the due process clause will be violated.
constitutes an arbitrary or unreasonable infringement of property rights is void, because it is
repugnant to the constitutional guaranties of due process and equal protection of the
COMELEC Resolution No. 9615 and the Fair Election Act intend to prevent the posting of
laws.316 (Citation omitted)
election propaganda in private property without the consent of the owners of such private
property. COMELEC has incorrectly implemented these regulations. Consistent with our
This court in Adiong held that a restriction that regulates where decals and stickers should ruling in Adiong, we find that the act of respondents in seeking to restrain petitioners from
be posted is "so broad that it encompasses even the citizens private posting the tarpaulin in their own private property is an impermissible encroachments on
property."317 Consequently, it violates Article III, Section 1 of the Constitution which the right to property.
provides thatno person shall be deprived of his property without due process of law. This
court explained:
V
Tarpaulin and its message are not religious speech
Property is more than the mere thing which a person owns, it includes the right to acquire,
use, and dispose of it; and the Constitution, in the 14th Amendment, protects these
We proceed to the last issues pertaining to whether the COMELEC in issuing the
essential attributes.
questioned notice and letter violated the right of petitioners to the free exercise of their
religion.
Property is more than the mere thing which a person owns. It is elementary that it includes
the right to acquire, use, and dispose of it. The Constitution protects these essential
At the outset, the Constitution mandates the separation of church and state. 320 This takes
attributes of property. Holden v. Hardy, 169 U.S. 366, 391, 41 L. ed. 780, 790, 18 Sup. Ct.
many forms. Article III, Section 5 of the Constitution, for instance provides:
Rep. 383. Property consists of the free use, enjoyment, and disposal of a persons
acquisitions without control or diminution save by the law of the land. 1 Cooleys Bl. Com.
127. (Buchanan v. Warley 245 US 60 [1917])318 Section 5. No law shall be made respecting an establishment of religion, or prohibiting the
free exercise thereof. The free exercise and enjoyment of religious profession and worship,
without discrimination or preference, shall forever be allowed. Noreligious test shall be
This court ruled that the regulation in Adiong violates private property rights:
required for the exercise of civil or political rights.

The right to property may be subject to a greater degree of regulation but when this right is
There are two aspects of this provision.321 The first is the none stablishment
joined by a "liberty" interest, the burden of justification on the part of the Government must
clause.322 Second is the free exercise and enjoyment of religious profession and worship. 323
be exceptionally convincing and irrefutable. The burden is not met in this case.

The second aspect is atissue in this case.

Clearly, not all acts done by those who are priests, bishops, ustadz, imams, or any other As aptly argued by COMELEC, however, the tarpaulin, on its face, "does not convey any
religious make such act immune from any secular regulation. 324 The religious also have a religious doctrine of the Catholic church."332 That the position of the Catholic church
secular existence. They exist within a society that is regulated by law. appears to coincide with the message of the tarpaulin regarding the RH Law does not, by
itself, bring the expression within the ambit of religious speech. On the contrary, the
tarpaulin clearly refers to candidates classified under "Team Patay" and "Team Buhay"
The Bishop of Bacolod caused the posting of the tarpaulin. But not all acts of a bishop
according to their respective votes on the RH Law.
amounts to religious expression. This notwithstanding petitioners claim that "the views and
position of the petitioners, the Bishop and the Diocese of Bacolod, on the RH Bill is
inextricably connected to its Catholic dogma, faith, and moral teachings. . . ." 325 The same may be said of petitioners reliance on papal encyclicals to support their claim
that the expression onthe tarpaulin is an ecclesiastical matter. With all due respect to the
Catholic faithful, the church doctrines relied upon by petitioners are not binding upon this
The difficulty that often presents itself in these cases stems from the reality that every act
court. The position of the Catholic religion in the Philippines as regards the RH Law does
can be motivated by moral, ethical, and religious considerations. In terms of their effect on
not suffice to qualify the posting by one of its members of a tarpaulin as religious speech
the corporeal world, these acts range from belief, to expressions of these faiths, to religious
solely on such basis. The enumeration of candidates on the face of the tarpaulin precludes
ceremonies, and then to acts of a secular character that may, from the point of view of
any doubtas to its nature as speech with political consequences and not religious speech.
others who do not share the same faith or may not subscribe to any religion, may not have
any religious bearing.
Furthermore, the definition of an "ecclesiastical affair" in Austria v. National Labor Relations
Commission333 cited by petitioners finds no application in the present case. The posting of
Definitely, the characterizations ofthe religious of their acts are not conclusive on this court.
the tarpaulin does not fall within the category of matters that are beyond the jurisdiction of
Certainly, our powers of adjudication cannot be blinded by bare claims that acts are
civil courts as enumerated in the Austriacase such as "proceedings for excommunication,
religious in nature.
ordinations of religious ministers, administration of sacraments and other activities
withattached religious significance."334
Petitioners erroneously relied on the case of Ebralinag v. The Division Superintendent of
Schools of Cebu326 in claiming that the court "emphatically" held that the adherents ofa
A FINAL NOTE
particular religion shall be the ones to determine whether a particular matter shall be
considered ecclesiastical in nature.327 This court in Ebralinagexempted Jehovahs
Witnesses from participating in the flag ceremony "out of respect for their religious beliefs, We maintain sympathies for the COMELEC in attempting to do what it thought was its duty
[no matter how] "bizarre" those beliefsmay seem to others." 328 This court found a balance in this case. However, it was misdirected.
between the assertion of a religious practice and the compelling necessities of a secular
command. It was an early attempt at accommodation of religious beliefs.
COMELECs general role includes a mandate to ensure equal opportunities and reduce
spending among candidates and their registered political parties. It is not to regulate or limit
In Estrada v. Escritor,329 this court adopted a policy of benevolent neutrality: the speech of the electorate as it strives to participate inthe electoral exercise.

With religion looked upon with benevolence and not hostility, benevolent neutrality allows
accommodation of religion under certain circumstances. Accommodations are government
policies that take religion specifically intoaccount not to promote the governments favored
form of religion, but to allow individuals and groups to exercise their religion without
hindrance. Their purpose or effect therefore is to remove a burden on, or facilitate the
exercise of, a persons or institutions religion. As Justice Brennan explained, the
"government [may] take religion into account . . . to exempt, when possible, from generally
applicable governmental regulation individuals whose religious beliefs and practices would
otherwise thereby be infringed, or to create without state involvement an atmosphere in
which voluntary religious exercise may flourish."330
This court also discussed the Lemon test in that case, such that a regulation is
constitutional when: (1) it has a secular legislative purpose; (2) it neither advances nor
inhibits religion; and (3) it does not foster an excessive entanglement with religion. 331
The tarpaulin in question may be viewed as producing a caricature of those who are
running for public office.Their message may be construed generalizations of very complex
individuals and party-list organizations.
They are classified into black and white: as belonging to "Team Patay" or "Team Buhay."
But this caricature, though not agreeable to some, is still protected speech.
That petitioners chose to categorize them as purveyors of death or of life on the basis of a
single issue and a complex piece of legislation at that can easily be interpreted as
anattempt to stereo type the candidates and party-list organizations. Not all may agree to
the way their thoughts were expressed, as in fact there are other Catholic dioceses that
chose not to follow the example of petitioners.
Some may have thought that there should be more room to consider being more broad-
minded and non-judgmental. Some may have expected that the authors would give more
space to practice forgiveness and humility.

But, the Bill of Rights enumerated in our Constitution is an enumeration of our fundamental
liberties. It is not a detailed code that prescribes good conduct. It provides space for all to
be guided by their conscience, not only in the act that they do to others but also in judgment
of the acts of others.

Freedom for the thought we can disagree with can be wielded not only by those in the
minority. This can often be expressed by dominant institutions, even religious ones. That
they made their point dramatically and in a large way does not necessarily mean that their
statements are true, or that they have basis, or that they have been expressed in good
taste.

Embedded in the tarpaulin, however, are opinions expressed by petitioners. It is a specie of

expression protected by our fundamental law. It is an expression designed to invite
attention, cause debate, and hopefully, persuade. It may be motivated by the interpretation
of petitioners of their ecclesiastical duty, but their parishioners actions will have very real
secular consequences. Certainly, provocative messages do matter for the elections.

What is involved in this case is the most sacred of speech forms: expression by the
electorate that tends to rouse the public to debate contemporary issues. This is not
speechby candidates or political parties to entice votes. It is a portion of the electorate
telling candidates the conditions for their election. It is the substantive content of the right to
suffrage.

This. is a form of speech hopeful of a quality of democracy that we should all deserve. It is
protected as a fundamental and primordial right by our Constitution. The expression in the
medium chosen by petitioners deserves our protection.

WHEREFORE, the instant petition is GRANTED. The temporary restraining order

previously issued is hereby made permanent. The act of the COMELEC in issuing the
assailed notice dated February 22, 2013 and letter dated February 27, 2013 is declared
unconstitutional.
FLORAIDA TERAA, Petitioner, vs. HON. ANTONIO DE SAGUN, PRESIDING JUDGE,
REGIONAL TRIAL COURT, BRANCH XIV, NASUGBU, BATANGAS AND ANTONIO B.
SIMUANGCO, Respondents.
The petitioner Floraida Terana (petitioner) asks us to reverse and set aside, through this
Petition for Review on Certiorari,1 the September 7, 2001 Decision2 of the Court of Appeals
(CA), and its subsequent Resolution3 denying the petitioners motion for reconsideration.
THE FACTS
The respondent Antonio Simuangco (respondent) owned a house and lot at 138 J.P. Laurel
St., Nasugbu, Batangas, which he leased to the petitioner. 4 Sometime in 1996, the
petitioner demolished the leased house and erected a new one in its place. 5 The
respondent alleged that this was done without his consent.6 The Contract of Lease7defining
the respective rights and obligations of the parties contained the following provisions, which
the petitioner allegedly violated:
3. That the lessee obligated herself with the Lessor by virtue of this Lease, to do the
following, to wit:
a) xxx
b) To keep the leased property in such repair and condition as it was in the
commencement of the Lease with the exception of portions or parts which may
be impaired due to reasonable wear and tear;
c) xxx
d) Not to make any alterations in the Leased property without the knowledge and
consent of the Lessor; x x x
The petitioner allegedly also gave the materials from the demolished house to her sister,
who built a house adjacent to the respondents property. 8 When the respondent discovered
what the petitioner did, he immediately confronted her and advised her to vacate the
premises.9 She refused. On February 3, 1997, the respondent sent a letter demanding the
petitioner to vacate the leased property.10 Despite this letter of demand, which the petitioner
received on February 10,11 she still refused to vacate the said property.
The respondent thus filed a complaint for unlawful detainer12 against the petitioner on April
16, 1997 on the ground of the petitioners violation of the terms of the Contract of
Lease.13 The respondent prayed for the petitioners ejectment of the leased property, and
for the award of 70,000.00, representing the cost of the materials from the demolished
house, attorneys fees, and costs.14
The presiding judge of the Municipal Trial Court (MTC) of Nasugbu,
Batangas, Hon. Herminia Lucas, inhibited from the case on the ground that she is related to
the respondent.15
The petitioner denied allegations of the complaint in her "Sagot."16 She claimed that she
demolished the old building and built a new one with the knowledge and consent of the
respondent; that the original house was old and was on the verge of collapsing; 17 that
without the timely repairs made by the petitioner, the houses collapse would have caused
the death of the petitioner and her family. The petitioner prayed for the court to: 1) dismiss
the ejectment case against her; and 2) award in her favor: a) 100,000.00 as moral
damages, b) 200,000.00 as reimbursement for the expenses incurred in building the new
house, c) 50,000.00 as attorneys fees, and d) 10,000.00 as costs incurred in relation to
the suit.18
The trial court called for a preliminary conference under Section 7 of the Revised Rules of
Summary Procedure (RSP) and Section 8 of Rule 70 of the Rules of Court, and required
the parties to file their position papers and affidavits of their witnesses after they failed to
reach an amicable settlement.19 Instead of filing their position papers, both parties moved
for an extension of time to file the necessary pleadings. The trial court denied both motions
on the ground that the RSP and the Rules of Court, particularly Rule 70, Section 13(5),
prohibit the filing of a motion for extension of time.20
The MTC framed the issues in the case as follows:
1. Whether or not there was a violation of the contract of lease when the old
house was demolished and a new house was constructed by the defendant; and
2. Whether or not defendant is entitled to be reimbursed for her expenses in the
construction of the new house.21
THE MTCS DECISION22
The MTC rendered its decision on November 5, 199723 despite the parties failure to timely
file their respective position papers.24 The decision stated that: according to the parties
Contract of Lease, the consent of the respondent must be obtained before any alteration or
repair could be done on the leased property; that the petitioner failed to produce any
evidence that the respondent had given her prior permission to demolish the leased house
and construct a new one; that even in her answer, she failed to give specific details about
the consent given to her; that in demolishing the old structure and constructing the new
one, the petitioner violated the Contract of Lease; that this violation of the terms of the
lease was a ground for judicial ejectment under Article 1673(3) of the Civil Code; and that
since the demolition and construction of the new house was without the consent of the
respondent, there was no basis to order the respondent to reimburse the petitioner.
The MTC thus ruled:
IN VIEW OF THE FOREGOING, judgment is hereby rendered in favor of the plaintiff
Antonio B. Simuangco and against the defendant Aida Terana as follows:
1. Ordering the defendant Aida Terana and all persons claiming right under her to
vacate and surrender possession of the subject house to the plaintiff;
SO ORDERED.25
Unaware that a decision had already been rendered, the petitioner filed a letter
entitled Kahilingan,26 to which she attached her position paper and the affidavits of her
witnesses.27 The submission was essentially a motion for reconsideration of the denial of
motion for extension of time. On November 6, 1977, the MTC denied the petitioners
Kahilingan as follows:
Defendant Aida Teranias "KAHILINGAN" dated November 5, 1997 is DENIED for being
moot and academic on account of the decision on the merits rendered by this court dated
November 4, 1997 relative to the instant case.
28
SO ORDERED.
Petitioner then filed a Notice of Appeal on November 12, 1997. 29 The records of the case
were ordered elevated to the Regional Trial Court (RTC) where the case was docketed as
Civil Case No. 439.
THE RTCS DECISION30
The RTC rendered judgment affirming the decision of the MTC on February 26, 1998. The
RTC ruled that: 1) the ruling of the MTC was supported by the facts on record; 2) although
the respondent failed to submit his position paper and the affidavits of his witnesses, the
MTC correctly rendered its decision on the basis of the pleadings submitted by the parties,
as well as the evidence on record; 3) the petitioner failed to show enough reason to reverse
the MTCs decision. The court further declared that its decision was immediately executory,
without prejudice to any appeal the parties may take.
The petitioner filed a Motion for Reconsideration and/or for New Trial on March 3,
1998.31 The petitioner argued that the appealed MTC decision was not supported by any
evidence, and that the respondent failed to substantiate the allegations of his complaint and
to discharge the burden of proving these allegations after the petitioner denied them in her
Sagot. In effect, the petitioner argued that the allegations of the complaint should not have
been the sole basis for the judgment since she filed an answer and denied the allegations
in the complaint; the RTC should have also appreciated her position paper and the affidavit
of her witnesses that, although filed late, were nevertheless not expunged from the records.
In her motion for a new trial, the petitioner argued that her failure to submit her position
paper and the affidavits of her witnesses within the 10-day period was due to excusable
negligence. She explained that she incurred delay because of the distance of some of her
witnesses residence. The petitioner alleged that she had a good and meritorious claim
against the respondent, and that aside from her position paper and the affidavits of her
witnesses, she would adduce receipts and other pieces of documentary evidence to
establish the costs incurred in the demolition of the old house and the construction of the
new one.
On April 28, 1998, the RTC granted the motion for reconsideration, and thus reversed its
February 26, 1998 judgment, as well as the November 5, 1997 decision of the MTC. It
noted that: 1) the MTC rendered its decision before the petitioner was able to file her
position paper and the affidavit of her witnesses; 2) the rule on the timeliness of filing
pleadings may be relaxed on equitable considerations; and 3) the denial of the petitioners
motion for reconsideration and/or new trial will result to a miscarriage of justice. Thus,
believing that it was equitable to relax the rules on the timeliness of the filing of pleadings,
the RTC remanded the case to the MTC for further proceedings, after giving the respondent
the opportunity to submit his position paper and the affidavits of his witnesses.
The fallo reads:
WHEREFORE, on considerations of equity and substantial justice, and in the light of
Section 6, Rule 135 of the Rules of Court, the judgment of this Court dated February 26,
1998, as well as the Decision dated November 4, 1997 of the Lower Court in Civil Case No.
1305, are hereby both set aside. The lower court to which the records were heretofore
remanded is hereby ordered to conduct further proceedings in this case, after giving the
plaintiff-appellee an opportunity to file his position paper and affidavits of witnesses as
required by Section 10, Rule 70, of the 1997 Rules of Civil Procedure. [Underscoring
supplied.]
SO ORDERED.
On May 9, 1998, the petitioner challenged the order of remand through another motion for
reconsideration.32 The petitioner argued that since the original action for unlawful detainer
had already been elevated from the MTC to the RTC, the RSP no longer governed the
disposal of the case. Before the RTC, the applicable rule is the Rules of Court, particularly
Section 6 of Rule 37, which reads:
Sec. 6. Effect of granting of motion for new trial. If a new trial is granted in accordance
with the provisions of this Rule, the original judgment or final order shall be vacated, and
the action shall stand for trial de novo; but the recorded evidence taken upon the former
trial, in so far as the same is material and competent to establish the issues, shall be used
at the new trial without retaking the same.
Thus, the RTC should have conducted a trial de novo instead of remanding the case to the
MTC. The petitioner further argued that a remand to the court a quo may only be ordered
under Section 8, Rule 4033 of the Rules of Court.
The RTC denied the motion noting that the petitioner missed the whole point of the reversal
of the decision. First, the reversal was made in the interest of substantial justice and the
RTC hewed more to the "spirit that vivifieth than to the letter that killeth," 34 and that "a
lawsuit is best resolved on its full merits, unfettered by the stringent technicalities of
procedure." The RTC further emphasized that a remand is not prohibited under the Rules
of Court and that Section 6 of Rule 135 allows it:
Sec. 6. Means to carry jurisdiction into effect When by law jurisdiction is conferred on a
court or judicial officer, all auxiliary writs, processes and other means necessary to carry it
into effect may be employed by such court or officer, and if the procedure to be followed in
the exercise of such jurisdiction is not specifically pointed out by law or by these rules, any
suitable process or mode of proceeding may be adopted which appears conformable to the
spirit of said law or rules.
the proceedings in the court of origin, including memoranda and briefs submitted by the
parties, instead of being remanded to the MTC.
In his Comment37 and Memorandum,38 the respondent joins the petitioners prayer for a
ruling based on the records instead of remanding the case to the MTC. He prays that, as
the MTC ruled, the petitioner be ordered to vacate the leased property, and that the
petitioners claim for reimbursement be denied. The respondent argues that the MTC
correctly ruled on the basis of the parties pleadings, the stipulation of facts during the
preliminary conference, and the records of the proceedings.
ISSUES

Second, Rule 40 governs appeals from the MTC to the RTC. Nowhere in Rule 40 is there a
The petitioner submits the following as the issue to be decided:
provision similar to Section 6 of Rule 37.

[W]hether under the Rules of Summary Procedure, the Regional Trial Court, as well as the
Third, Section 6 of Rule 37 contemplates a motion for new trial and for reconsideration filed
Court of Appeals, may order the case remanded to the MTC after the plaintiff, herein
before a trial court a quo. The RTC in this case was acting as an appellate court; the
respondent, failed to submit evidence in support of his complaint because his Position
petitioners motion for new trial and reconsideration was directed against the appellate
Paper, affidavit of witnesses and evidence, were not submitted on time and the extension of
judgment of the RTC, not the original judgment of the trial court.
time to file the same was denied because it is prohibited under the Rules on Summary
Procedure.39
Fourth, after Republic Act No. 6031 mandated municipal trial courts to record their
proceedings, a trial de novo at the appellate level may no longer be conducted. The
which we break down into the following sub-issues: 1) whether a remand is proper; 2)
appellate courts may instead review the evidence and records transmitted to it by the trial
whether the Court should appreciate the petitioners position paper and the affidavits of her
court. Since the petitioner is asking the court to review the records of the MTC, inclusive of
witnesses; and 3) whether the complaint for unlawful detainer should be dismissed.
her position paper and the affidavits of her witnesses, it is also important to give the
respondent an opportunity to file his position paper and the affidavits of his witnesses
before the MTC renders a judgment. It is the MTC or the trial court that has the jurisdiction THE COURTS RULING
to do that.
The petition is partly meritorious.
THE CAS DECISION
Remand Not Necessary
The CA affirmed the RTC in a decision promulgated on September 7, 2001. 35 The CA
noted that the RTCs order of remand was not just based on equity and substantial justice,
but was also based on law, specifically Section 6 of Rule 135. Thus, the CA ruled that the We find that a remand of the case to the lower courts is no longer necessary, given the
RTC did not err in remanding the case to the MTC and ordering the conduct of further pleadings and submissions filed, and the records of the proceedings below. A remand
proceedings after giving the respondent an opportunity to present his position paper and would delay the overdue resolution of this case (originally filed with the MTC on April 16,
the affidavits of his witnesses. This ruling did not satisfy petitioner, giving way to the present 1997), and would run counter to the spirit and intent of the RSP.40
petition.
Petitioners Position Paper and the Affidavits of Her Witnesses Cannot Be Admitted
THE PETITION
Should the Court admit the petitioners position paper and the affidavits of her witnesses
Before this Court, the petitioner alleges: 1) that the respondent made a request for the attached to her Kahilingan?
petitioner to vacate the subject property because his nearest of kin needed it; 2) that she
was only going to vacate the premises if she were reimbursed the actual cost incurred in The intent and terms of the RSP both speak against the liberality that the petitioner sees.
building the said house;36 3) that the case be decided on the basis of the entire record of By its express terms, the purpose of the RSP is to "achieve an expeditious and inexpensive
determination" of the cases they cover, among them, forcible entry and unlawful detainer
cases.41 To achieve this objective, the RSP expressly prohibit certain motions and
pleadings that could cause delay, among them, a motion for extension of time to file
pleadings, affidavits or any other paper. If the extension for the filing of these submissions
cannot be allowed, we believe it illogical and incongruous to admit a pleading that is
already filed late. Effectively, we would then allow indirectly what we prohibit to be done
directly. It is for this reason that in Don Tino Realty Development Corporation v.
Florentino,42albeit on the issue of late filing of an answer in a summary proceeding, we
stated that "[t]o admit a late answer is to put a premium on dilatory measures, the very
mischief that the rules seek to redress."
The strict adherence to the reglementary period prescribed by the RSP is due to the
essence and purpose of these rules. The law looks with compassion upon a party who has
been illegally dispossessed of his property. Due to the urgency presented by this situation,
the RSP provides for an expeditious and inexpensive means of reinstating the rightful
possessor to the enjoyment of the subject property. 43 This fulfills the need to resolve the
ejectment case quickly. Thus, we cannot reward the petitioners late filing of her position
paper and the affidavits of her witnesses by admitting them now.
The failure of one party to submit his position paper does not bar at all the MTC from
issuing a judgment on the ejectment complaint. Section 10 of the RSP states:
Section 10. Rendition of judgment. Within thirty (30) days after receipt of the last affidavits
and position papers, or the expiration of the period for filing the same, the court shall render
judgment. [Underscoring supplied.]
However, should the court find it necessary to clarify certain material facts, it may, during
the said period, issue an order specifying the matters to be clarified, and require the parties
to submit affidavits or other evidence on the said matters within ten (10) days from receipt
of said order. Judgment shall be rendered within fifteen (15) days after the receipt of the
last affidavit or the expiration of the period for filing the same.
The court shall not resort to the foregoing procedure just to gain time for the rendition of the
judgment.
Thus, the situation obtaining in the present case has been duly provided for by the Rules; it
was correct to render a judgment, as the MTC did, after one party failed to file their position
paper and supporting affidavits.
That a position paper is not indispensable to the courts authority to render judgment is
further evident from what the RSP provides regarding a preliminary conference: "on the
basis of the pleadings and the stipulations and admissions made by the parties, judgment
may be rendered without the need for further proceedings, in which event the judgment
shall be rendered within 30 days from the issuance of the order." 44 Thus, the proceedings
may stop at that point, without need for the submission of position papers. In such a case,
what would be extant in the record and the bases for the judgment would be the complaint,
answer, and the record of the preliminary conference.
Unlawful detainer
The special civil action for unlawful detainer has the following essential requisites:
1) the fact of lease by virtue of a contract, express or implied;
2) the expiration or termination of the possessor's right to hold possession;
3) withholding by the lessee of possession of the land or building after the
expiration or termination of the right to possess;
4) letter of demand upon lessee to pay the rental or comply with the terms of the
lease and vacate the premises; and
5) the filing of the action within one year from the date of the last demand
received by the defendant.45
Requisites 1, 4, and 5 have been duly established. The presence of the Contract of Lease
is undisputed; the letter of demand was sent on February 3, 1997, and received by the
petitioner on February 10, 1997; and the action was filed on April 16, 1997, well within the
one-year period from the letter of demand. For our determination is whether the petitioners
right to possess the subject property may be terminated by virtue of her violation of the
terms of the contract. If we answer in the affirmative, her continued detention of the
property is illegal.
Section 1673(3) of the Civil Code answers this question by providing that the lessor may
terminate the lease contract for violation of any of the conditions or terms agreed
upon,46 and may judicially eject the lessee.47 One of the stipulated terms of the parties
Contract of Lease, as narrated above, is that no alterations may be made on the leased
property without the knowledge and consent of the lessor. The issue in this case is beyond
the fact of alteration since it is not disputed that the petitioner demolished the house under
lease and built a new one. The crucial issue is whether the demolition was with or without
the knowledge and consent of the respondent.
The petitioner contends that the Court should not give credence to the respondents claim
that he neither had knowledge of nor gave his consent to her acts. She argued that the
respondent had the burden of proving this allegation with positive evidence after she
frontally denied it in her answer. Since the respondent failed to discharge this burden, she
argues that she no longer needed to prove her defense that the demolition and construction
were done with the respondents knowledge and consent.48
The petitioners contention is misplaced.
First, the material allegations in a complaint must be specifically denied by the defendant in
his answer. Section 10, Rule 8 of the 1997 Rules of Court, provides:
A defendant must specify each material allegation of fact the truth of which he does not
admit and, whenever practicable, shall set forth the substance of the matters upon which he
relies to support his denial. Where a defendant desires to deny only a part of an averment,
he shall specify so much of it as is true and material and shall deny the remainder. Where a
defendant is without knowledge or information sufficient to form a belief as to the truth of a
material averment made in the complaint, he shall so state, and this shall have the effect of
a denial.
Section 11, Rule 8 of the Rules of Court likewise provides that material allegations in the
complaint which are not specifically denied, other than the amount of unliquidated
damages, are deemed admitted. A denial made without setting forth the substance of the
matters relied upon in support of the denial, even when to do so is practicable, does not
amount to a specific denial.49
The petitioners denial in her answer consists of the following:
1. Maliban sa personal na katangian at tirahan ng nasasakdal, ay walang
katotuhanan ang mga isinasakdal ng nagsasakdal;
2. Na hindi lumabag sa kasunduan ng upahan ang nasasakdal;
3. Na, ang pagpapagawa ng bahay na inuupahan ng nasasakdal ay sa kaalaman
at kapahintulutan ng nagsasakdal at higit na gumanda at tumibay ang bahay ng
nagsasakdal sa pamamagitan ng pagpapagawa ng nasasakdal; xxx 50
We do not find this denial to be specific as the petitioner failed to set forth the substance of
the matters in which she relied upon to support her denial. The petitioner merely alleged
that consent was given; how and why, she did not say. If indeed consent were given, it
would have been easy to fill in the details. She could have stated in her pleadings that she
verbally informed the respondent of the need for the repairs, or wrote him a letter. She
could have stated his response, and how it was conveyed, whether verbally or in writing.
She could have stated when the consent was solicited and procured. These, she failed to
do. Ergo, the petitioner is deemed to have admitted the material allegations in the
complaint.
Second, both parties failed to present evidence other than the allegations in their pleadings.
Thus, the court may weigh the parties allegations against each other. The petitioner
presented a general denial, while the respondent set forth an affirmative assertion. This
Court has time and again said that a general denial cannot be given more weight than an
affirmative assertion.51
Damages recoverable in an unlawful detainer action are limited to rentals or reasonable
compensation for the use of the property
This Court has no jurisdiction to award the reimbursement prayed for by both parties. Both
parties seek damages other than rentals or reasonable compensation for the use of the
property, which are the only forms of damages that may be recovered in an unlawful
detainer case.52 Rule 70, Section 17 of the Rules of Court authorizes the trial court to order
the award of an amount representing arrears of rent or reasonable compensation for the
use and occupation of the premises if it finds that the allegations of the complaint are
true.531avvphil.zw+
The rationale for limiting the kind of damages recoverable in an unlawful detainer case was
explained in Araos v. Court of Appeals,54 wherein the Court held that:
The rule is settled that in forcible entry or unlawful detainer cases, the only damage that
can be recovered is the fair rental value or the reasonable compensation for the use and
occupation of the leased property. The reason for this is that in such cases, the only issue
raised in ejectment cases is that of rightful possession; hence, the damages which could be
recovered are those which the plaintiff could have sustained as a mere possessor, or those
caused by the loss of the use and occupation of the property, and not the damages which
he may have suffered but which have no direct relation to his loss of material possession.
An action for reimbursement or for recovery of damages may not be properly joined with
the action for ejectment. The former is an ordinary civil action requiring a full-blown trial,
while an action for unlawful detainer is a special civil action which requires a summary
procedure. The joinder of the two actions is specifically enjoined by Section 5 of Rule 2 of
the Rules of Court, which provides:
Section 5. Joinder of causes of action. A party may in one pleading assert, in the
alternative or otherwise, as many causes of action as he may have against an opposing
party, subject to the following conditions:
(a) The party joining the causes of action shall comply with the rules on joinder of
parties;
(b) The joinder shall not include special civil actions or actions governed by
special rules;
(c) Where the causes of action are between the same parties but pertain to
different venues or jurisdictions, the joinder may be allowed in the Regional Trial
Court provided one of the causes of action falls within the jurisdiction of said
court and the venue lies therein; and
(d) Where the claims in all the causes of action are principally for recovery of
money, the aggregate amount claimed shall be the test of jurisdiction.
[Underscoring supplied.]
WHEREFORE, the petition is PARTIALLY GRANTED. The decision of the Court of Appeals
in CA-G.R. No. SP-48534 is REVERSED AND SET ASIDE. The petitioner FLORAIDA
TERANA and all persons claiming right under her are ordered to vacate and surrender
possession of the subject property to the respondent ANTONIO SIMUANGCO. No costs.
SPS. VICTOR & MILAGROS PEREZ and CRISTINA AGRAVIADOR AVISO, Petitioners,
vs. ANTONIO HERMANO, Respondent.
This is a petition for review on certiorari under Rule 45 of the Rules of Court assailing the
Resolution1 of the Court of Appeals dismissing petitioners original action for certiorari under
Rule 65 for being filed out of time. Assailed as well is the Resolution2 dismissing petitioners
motion for reconsideration.
The pertinent facts of the case are as follows:
On 27 April 1998, petitioners Cristina Agraviador Aviso and spouses Victor and Milagros
Perez filed a civil case for Enforcement of Contract and Damages with Prayer for the
Issuance of a Temporary Restraining Order (TRO) and/or Preliminary Injunction against
Zescon Land, Inc. and/or its President Zenie Sales-Contreras, Atty. Perlita Vitan-Ele and
against respondent herein Antonio Hermano before the Regional Trial Court (RTC) of
Quezon City, Branch 224.3 On 15 May 1998, respondent (then defendant) Hermano filed
his Answer with Compulsory Counterclaim. On 17 January 2000, respondent Hermano filed
a "Motion with Leave to Dismiss the Complaint or Ordered Severed for Separate Trial"
which was granted by the trial court in an Order dated 28 February 2000.
This Order was received by petitioners on 21 March 2000. On 23 March 2000, petitioners
moved for reconsideration which was denied by the trial court on 25 May 2000 and
received by petitioners on 18 June 2000. On 17 August 2000, petitioners filed an original
action for certiorari before the Court of Appeals imputing grave abuse of discretion on the
part of the trial court in dismissing the complaint against respondent Hermano.
On 19 October 2000, the Court of Appeals rendered the first assailed Resolution dismissing
the petition for certiorari "for having been filed beyond the reglementary period pursuant to
Section 4, Rule 65 of the 1997 Rules on Civil Procedure, as amended." On 02 March 2001,
the second assailed Resolution was promulgated dismissing petitioners motion for
reconsideration, the Court of Appeals holding that:
From the time petitioners received the assailed Order on March 21, 2000 and filed their
motion for reconsideration, four (4) days had elapsed. On June 18, 2000, petitioners
received the denial of their motion for reconsideration. When the instant petition was filed
on August 17, 2000, a total of 63 days had elapsed.
A.M. No. 00-2-03-50 further amending Section 4, Rule 65 of the New Rules on Civil
Procedure states that the petition shall be filed not later than sixty (60) days from notice of
the judgment, Order or Resolution and in case a motion for reconsideration or new trial is
timely filed, whether such motion is required or not, the 60-day period shall be counted from
notice of the denial of said motion.
Viewed from its light, the assailed Orders had already attained finality, and are now beyond
the power of this Court to review.4
Aggrieved by the foregoing ruling, petitioners are now before us assigning the following
MANIFEST AND/OR SERIOUS ERROR COMMITTED BY THE HONORABLE COURT OF
APPEALS IN THE COMPUTATION OF THE PERIOD WITHIN WHICH THE
PETITIONERS FILED THEIR PETITION FOR CERTIORARI BEFORE IT AND
CONSEQUENTLY COMMITTED GRAVE ABUSE OF DISCRETION IN THE
APPRECIATION OF FACTS AND/OR MISAPPREHENSION OF FACTS, WITH ITS
FINDING OF FACT NOT BEING BORNE BY THE RECORD OR EVIDENCE, AND THUS
ITS CONCLUSION IS ENTIRELY BASELESS.5
According to petitioners, following the amendment introduced by A.M. No. 00-2-03-SC to
Section 4, Rule 65 of the 1997 Rules on Civil Procedure, their petition was filed on the 60th
day, thus, within the reglementary period. Respondent insists, on the other hand, that the
petition was filed on the 61st day while the Court of Appeals had declared that the petition
was filed on the 63rd day.
We agree in the position taken by petitioners.
Admittedly, at the time petitioners filed their petition for certiorari on 17 August 2000, the
rule then prevailing was Section 4, Rule 65 of the 1997 Rules on Civil Procedure, as
amended by Circular No. 39-98 effective 01 September 1998, which provides:
Sec. 4. Where petition filed. The petition shall be filed not later than sixty (60) days from
notice of the judgment, order or resolution sought to be assailed in the Supreme Court, or if
it relates to the acts or omissions of a lower court or of a corporation, board, officer or
person in the Regional Trial Court exercising jurisdiction over the territorial area as defined
by the Supreme Court. It may also be filed in the Court of Appeals whether or not the same
is in aid of its appellate jurisdiction, or in the Sandiganbayan if it is in aid of its jurisdiction. If
it involves the acts or omissions of a quasi-judicial agency, and unless otherwise provided
by law or these Rules, the petition shall be filed in and cognizable only by the Court of
Appeals.
If the petitioner had filed a motion for new trial or reconsideration in due time after notice of
said judgment, order, or resolution, the period herein fixed shall be interrupted. If the motion
is denied, the aggrieved party may file the petition within the remaining period, but which
shall not be less than five (5) days in any event, reckoned from notice of such denial. No
extension of time to file the petition shall be granted except for the most compelling reason
and in no case to exceed fifteen (15) days. (Emphasis supplied)
However, on 01 September 2000, during the pendency of the case before the Court of
Appeals, Section 4 was amended anew by A.M. No. 00-2-03-SC6 which now provides:
Sec. 4. When and where petition filed. The petition shall be filed not later than sixty (60)
days from notice of the judgment, order or resolution. In case a motion for reconsideration
or new trial is timely filed, whether such motion is required or not, the sixty (60) day period
shall be counted from notice of the denial of said motion.
The petition shall be filed in the Supreme Court or, if it relates to the acts or omissions of a
lower court or of a corporation, board, officer or person, in the Regional Trial Court
exercising jurisdiction over the territorial area as defined by the Supreme Court. It may also
be filed in the Court of Appeals whether or not the same is in aid of its appellate jurisdiction,
or in the Sandiganbayan if it is in aid of its appellate jurisdiction. If it involves the acts or
omissions of a quasi-judicial agency, unless otherwise provided by law or these rules, the
petition shall be filed in and cognizable only by the Court of Appeals.
No extension of time to file the petition shall be granted except for compelling reason and in
no case exceeding fifteen (15) days. (Emphasis supplied)
Under this amendment, the 60-day period within which to file the petition starts to run from
receipt of notice of the denial of the motion for reconsideration, if one is filed. 7
In Narzoles v. National Labor Relations Commission,8 we described this latest amendment
as curative in nature as it remedied the confusion brought about by Circular No. 39-98
because, "historically, i.e., even before the 1997 revision to the Rules of Civil Procedure, a
party had a fresh period from receipt of the order denying the motion for reconsideration to
file a petition for certiorari." Curative statutes, which are enacted to cure defects in a prior
law or to validate legal proceedings which would otherwise be void for want of conformity
with certain legal requirements, by their very essence, are retroactive. 9 And, being a
procedural rule, we held in Sps. Ma. Carmen and Victor Javellana v. Hon. Presiding Judge
Benito Legarda10 that "procedural laws are construed to be applicable to actions pending
and undetermined at the time of their passage, and are deemed retroactive in that sense
and to that extent."
Consequently, petitioners had a fresh period of 60 days from the time they received the
Order of the trial court denying their motion for reconsideration on 18 June 2000. When
they filed their petition with the Court of Appeals on 17 August 2000, exactly 60 days had
elapsed following the rule that in computing a period, the first day shall be excluded and the
last day included.11 Hence, there can be no doubt that the petition was filed within the
reglementary period for doing so and it was reversible error on the part of the Court of
Appeals in not giving said petition due course. However, instead of remanding the case to
the Court of Appeals which would only unduly prolong the disposition of the substantive
issue raised, we shall resolve the petition originally filed therein.
Petitioners brought to the Court of Appeals on petition for certiorari under Rule 65 the lone
issue of:
WHETHER OR NOT THE PUBLIC RESPONDENT [Hon. Emilio L. Leachon, Jr., Presiding
Judge, RTC, Branch 224, Quezon City] HAD PLAINLY AND MANIFESTLY ACTED WITH
GRAVE ABUSE OF DISCRETION, IN EXCESS OF JURISDICTION, TANTAMOUNT TO
LACK OF JURISDICTION, IN DISMISSING THE COMPLAINT AS AGAINST
RESPONDENT ANTONIO HERMANO IN CIVIL CASE NO. Q-98-34211.12
Petitioners assert that respondent Hermano should not have been dismissed from the
complaint because: (1) He did not file a motion to dismiss under Rule 16 of the Rules of
Court and, in fact, his "Motion with Leave to Dismiss the Complaint or Ordered Severed for
Separate Trial" was filed almost two years after he filed his Answer to the complaint; (2)
There was no misjoinder of causes of action in this case; and (3) There was no misjoinder
of parties.
The case filed by petitioners against respondent Hermano and the other defendants,
namely Zescon Land, Inc. and/or its President Zenie Sales-Contreras and Atty. Perlita
Vitan-Ele, was one for "Enforcement of Contract and Damages with Prayer for the Issuance
of a Temporary Restraining Order (TRO) and/or Preliminary Injunction" docketed as Civil
Case No. Q-98-34211 and raffled to Branch 224.
Petitioners presented three causes of action in their complaint, the first for enforcement of
contract to sell entered into between petitioners and Zescon Land, Inc., the second for
annulment or rescission of two contracts of mortgage entered into between petitioners and
respondent Hermano and the third for damages against all defendants.
For the first cause of action, petitioners allege that sometime in November 1997, they
entered into a Contract to Sell with Zescon Land, Inc., through Zenie Sales-Contreras, for
the purchase of five (5) parcels of land in the total amount of Nineteen Million One Hundred
Four Thousand Pesos (P19,104,000.00). As part of their agreement, a portion of the
purchase price would be paid to them as down payment, another portion to be given to
them as cash advance upon the execution of the contract and another portion to be used
by the buyer, Zescon Land, Inc., to pay for loans earlier contracted by petitioners which
loans were secured by mortgages.
Re-pleading the foregoing in their second cause of action, petitioners contend that "in a
tricky machination and simultaneous with the execution of the aforesaid Contract to Sell,"
they were made to sign other documents, two of which were Mortgage deeds over the
same five properties in favor of respondent Hermano, whom they had never met. It was
allegedly explained to them by Sales-Contreras that the mortgage contracts would merely
serve to facilitate the payment of the price as agreed upon in their Contract to Sell.
Petitioners claim that it was never their intention to mortgage their property to respondent
Hermano and that they have never received a single centavo from mortgaging their
property to him. Petitioners acknowledge, however, that respondent Hermano was
responsible for discharging their obligations under the first mortgage and for having the
titles over the subject lands released, albeit not to them but to respondent Hermano. They
seek a TRO against respondent Hermano who had informed them that he would be
foreclosing the subject properties.
In their third cause of action, petitioners pray for damages against all the defendants
alleging that:
Due to the failure and refusal, without any valid justification and reason, by defendants
Zescon and Contreras to comply with their obligations under the Contract to Sell, including
their failure and refusal to pay the sums stipulated therein, and in misleading and
misrepresenting the plaintiffs into mortgaging their properties to defendant Antonio
Hermano, who in turn had not paid the plaintiffs the proceeds thereof, putting them in
imminent danger of losing the same, plaintiffs had suffered, and continue to suffer,
sleepless nights .
By reason of defendants Zescon and Contrerass failure and refusal to pay the sums
stipulated in the Contract to Sell, and of defendant Antonio Hermanos not having paid
plaintiffs the proceeds of the mortgage agreements, plaintiffs had been deprived of the
beneficial use of the proceeds and stood to lose, as they continue to lose, by way of
unearned profits at least P1,000,000.00.13
In his Answer with (Compulsory) Counterclaim dated 15 May 1998, respondent Hermano
denied petitioners allegations.14 Then, on 19 February 1999, respondent Hermano filed a
civil case entitled "Judicial Foreclosure of Real Estate Mortgage" against petitioner Aviso
docketed as Civil Case No. Q-99-36914 and raffled to Branch 216 of the RTC of Quezon
City. On 17 January 2000, respondent Hermano filed a "Motion With Leave To Dismiss The
Complaint Against Defendant Antonio Hermano, Or Ordered Severed For Separate Trial"
before Branch 224. In said motion, respondent Hermano argued that there was a mis-
joinder of causes of action under Rule 2, Section 6 of the Rules of Court. To quote
respondent Hermano:
3. In the instant case, the plaintiffs action for the Enforcement of Contract and Damages
with Prayer for The Issuance of a Temporary Restraining Order And/Or Preliminary
Injunction against Zescon Land, Inc., and/or its President Zenie Sales Contreras, may not,
under Rule 2, Section 6 of the 1997 Rules of Civil Procedure, join defendant Hermano as
party defendant to annul and/or rescind the Real Estate Mortgages of subject properties.
There is a misjoinder of parties defendants under a different transaction or cause of action;
that under the said Rule 2, Section 6, upon motion of defendant Hermano in the instant
case, the complaint against defendant Hermano can be severed and tried separately; . . .
.15
Over petitioners opposition to said motion, the same was granted by the trial court in its
Order dated 28 February 2000 on the justification that:
. . . [D]efendant having filed a special civil action for judicial foreclosure of mortgage and
now pending before RTC Branch 216, he should be dropped as one of the defendants in
this case and whatever claims plaintiffs may have against defendant Hermano, they can set
it up by way of an answer to said judicial foreclosure.16
And, in an Order dated 25 May 2000, the trial court resolved petitioners motion for
reconsideration by dismissing the same, to wit:
After going over the arguments of the parties, the Court believes that defendant Hermano
has nothing to do with the transaction which the plaintiffs entered into with defendant
Zescon Land, Inc. Besides, the said motion raised matters and defenses previously
considered and passed upon by the Court.17
It is these two Orders that were brought up by petitioners to the Court of Appeals on petition
for Certiorari under Rule 65. The pivotal issue to be resolved, therefore, is whether or not
respondent trial court committed grave abuse of discretion in dismissing the complaint
against respondent Hermano in Civil Case No. Q-98-34211.
As far as we can glean from the Orders of the trial court, respondent Hermano was dropped
from the complaint on the ground of misjoinder of causes of action. Petitioners, on the other
hand, insist that there was no misjoinder in this case.
To better understand the present controversy, it is vital to revisit the rules on joinder of
causes of action as exhaustively discussed in Republic v. Hernandez,18 thus:
By a joinder of actions, or more properly, a joinder of causes of action, is meant the uniting
of two or more demands or rights of action in one action; the statement of more than one
cause of action in a declaration. It is the union of two or more civil causes of action, each of
which could be made the basis of a separate suit, in the same complaint, declaration or
petition. A plaintiff may under certain circumstances join several distinct demands,
controversies or rights of action in one declaration, complaint or petition.
As can easily be inferred from the above definitions, a party is generally not required to join
in one suit several distinct causes of action. The joinder of separate causes of action,
where allowable, is permissive and not mandatory in the absence of a contrary statutory
provision, even though the causes of action arose from the same factual setting and might
under applicable joinder rules be joined. Modern statutes and rules governing joinders are
intended to avoid a multiplicity of suits and to promote the efficient administration of justice
wherever this may be done without prejudice to the rights of the litigants. To achieve these
ends, they are liberally construed.
While joinder of causes of action is largely left to the option of a party litigant, Section 5,
Rule 2 of our present Rules allows causes of action to be joined in one complaint
conditioned upon the following requisites: (a) it will not violate the rules on jurisdiction,
venue and joinder of parties; and (b) the causes of action arise out of the same contract,
transaction or relation between the parties, or are for demands for money or are of the
same nature and character.
The objectives of the rule or provision are to avoid a multiplicity of suits where the same
parties and subject matter are to be dealt with by effecting in one action a complete
determination of all matters in controversy and litigation between the parties involving one
subject matter, and to expedite the disposition of litigation at minimum cost. The provision
should be construed so as to avoid such multiplicity, where possible, without prejudice to
the rights of the litigants. Being of a remedial nature, the provision should be liberally
construed, to the end that related controversies between the same parties may be
adjudicated at one time; and it should be made effectual as far as practicable, with the end
in view of promoting the efficient administration of justice.
The statutory intent behind the provisions on joinder of causes of action is to encourage
joinder of actions which could reasonably be said to involve kindred rights and wrongs,
although the courts have not succeeded in giving a standard definition of the terms used or
in developing a rule of universal application. The dominant idea is to permit joinder of
causes of action, legal or equitable, where there is some substantial unity between them.
While the rule allows a plaintiff to join as many separate claims as he may have, there
should nevertheless be some unity in the problem presented and a common question of
law and fact involved, subject always to the restriction thereon regarding jurisdiction, venue
and joinder of parties. Unlimited joinder is not authorized.
Our rule on permissive joinder of causes of action, with the proviso subjecting it to the
correlative rules on jurisdiction, venue and joinder of parties and requiring a conceptual
unity in the problems presented, effectively disallows unlimited joinder.
Section 6, Rule 2 on misjoinder of causes of action provides:
Sec. 6. Misjoinder of causes of action. - Misjoinder of causes of action is not a ground for
dismissal of an action. A misjoined cause of action may, on motion of a party or on the
initiative of the court, be severed and proceeded with separately.
There is misjoinder of causes of action when the conditions for joinder under Section 5,
Rule 2 are not met. Section 5 provides:
Sec. 5. Joinder of causes of action. - A party may in one pleading assert, in the alternative
or otherwise, as many causes of action as he may have against an opposing party, subject
to the following conditions:
(a) The party joining the causes of action shall comply with the rules on joinder of parties;
(b) The joinder shall not include special civil actions or actions governed by special rules;
(c) Where the causes of action are between the same parties but pertain to different venues
or jurisdictions, the joinder may be allowed in the Regional Trial Court provided one of the
causes of action falls within the jurisdiction of said court and the venue lies therein; and
(d) Where the claims in all the causes of action are principally for recovery of money, the
aggregate amount claimed shall be the test of jurisdiction.
As far as can be gathered from the assailed Orders, it is the first condition - on joinder of
parties - that the trial court deemed to be lacking. It is well to remember that the joinder of
causes of action may involve the same parties or different parties. If the joinder involves
different parties, as in this case, there must be a question of fact or of law common to both
parties joined, arising out of the same transaction or series of transaction. 19
In herein case, petitioners have adequately alleged in their complaint that after they had
already agreed to enter into a contract to sell with Zescon Land, Inc., through Sales-
Contreras, the latter also gave them other documents to sign, to wit: A Deed of Absolute
Sale over the same properties but for a lower consideration, two mortgage deeds over the
same properties in favor of respondent Hermano with accompanying notes and
acknowledgment receipts for Ten Million pesos (P10,000,000) each. Petitioners claim that
Zescon Land, Inc., through Sales-Contreras, misled them to mortgage their properties
which they had already agreed to sell to the latter.
From the above averments in the complaint, it becomes reasonably apparent that there are
questions of fact and law common to both Zescon Land, Inc., and respondent Hermano
arising from a series of transaction over the same properties. There is the question of fact,
for example, of whether or not Zescon Land, Inc., indeed misled petitioners to sign the
mortgage deeds in favor of respondent Hermano. There is also the question of which of the
four contracts were validly entered into by the parties. Note that under Article 2085 of the
Civil Code, for a mortgage to be valid, it is imperative that the mortgagor be the absolute
owner of the thing mortgaged. Thus, respondent Hermano will definitely be affected if it is
subsequently declared that what was entered into by petitioners and Zescon Land, Inc.,
was a Contract of Sale (as evidenced by the Deed of Absolute Sale signed by them)
because this would mean that the contracts of mortgage were void as petitioners were no
longer the absolute owners of the properties mortgaged. Finally, there is also the question
of whether or not Zescon Land, Inc., as represented by Sales-Contreras, and respondent
Hermano committed fraud against petitioners as to make them liable for damages.
Prescinding from the foregoing, and bearing in mind that the joinder of causes of action
should be liberally construed as to effect in one action a complete determination of all
matters in controversy involving one subject matter, we hold that the trial court committed
grave abuse of discretion in severing from the complaint petitioners cause of action against
respondent Hermano.
WHEREFORE, premises considered, the Resolution of the Court of Appeals dated 19
October 2000 dismissing petitioners petition for certiorari and its Resolution dated 02
March 2001 denying petitioners motion for reconsideration are REVERSED and SET
ASIDE. The petition for certiorari is hereby GRANTED. The Orders of the Regional Trial
Court of Quezon City, Branch 224, dated 28 February 2000 and 25 May 2000 are
ANNULLED and SET ASIDE. The RTC is further ordered to reinstate respondent Antonio
Hermano as one of the defendants in Civil Case No. Q-98-34211. No costs.
PACIFIC BANKING CORPORATION EMPLOYEES ORGANIZATION, PAULA S. PAUG,
and its officers and members, petitioners, vs. THE HONORABLE COURT OF APPEALS
and VITALIANO N. NAAGAS II, as Liquidator of Pacific Banking
Corporation, respondents.
These cases have been consolidated because the principal question involved is the same:
whether a petition for liquidation under 29 of Rep. Act No. 265, otherwise known as the
Central Bank Act, is a special proceeding or an ordinary civil action. The Fifth and the
Fourteenth Divisions of the Court of Appeals reached opposite results on this question and
consequently applied different periods for appealing.
The facts are as follows:
I.
Proceedings in the CB and the RTC
On July 5, 1985, the Pacific Banking Corporation (PaBC) was placed under receivership by
the Central Bank of the Philippines pursuant to Resolution No. 699 of its Monetary Board. A
few months later, it was placed under liquidation1 and a Liquidator was appointed.2
On April 7, 1986, the Central Bank filed with the Regional Trial Court of Manila Branch 31, a
petition entitled "Petition for Assistance in the Liquidation of Pacific Banking
Corporation." 3 The petition was approved, after which creditors filed their claims with the
court.
On May 17, 1991, a new Liquidator, Vitaliano N. Naagas,4 President of the Philippine
Deposit Insurance Corporation (PDIC), was appointed by the Central Bank.
On March 13, 1989 the Pacific Banking Corporation Employees Organization (Union for
short), petitioner in G.R. No. 109373, filed a complaint-in-intervention seeking payment of
holiday pay, 13th month pay differential, salary increase differential, Christmas bonus, and
cash equivalent of Sick Leave Benefit due its members as employees of PaBC. In its order
dated September 13, 1991, the trial court ordered payment of the principal claims of the
Union.5
The Liquidator received a copy of the order on September 16, 1991. On October 16, 1991,
he filed a Motion for Reconsideration and Clarification of the order. In his order of
December 6, 1991, the judge modified his September 13, 19916 but in effect denied the
Liquidator's motion for reconsideration. This order was received by the Liquidator on
December 9, 1991. The following day, December 10, 1991, he filed a Notice of Appeal and
a Motion for Additional Time to Submit Record on Appeal. On December 23, 1991, another
Notice of Appeal was filed by the Office of the Solicitor General in behalf of Naagas.
In his order of February 10, 1992, respondent judge disallowed the Liquidator's Notice of
Appeal on the ground that it was late, i.e., more than 15 days after receipt of the decision.
The judge declared his September 13, 1991 order and subsequent orders to be final and
executory and denied reconsideration. On March 27, 1992, he granted the Union's Motion
for issuance of a writ of Execution.
Ang Keong Lan and E.J. Ang Int'l., private respondents in G.R. No. 112991, likewise filed
claims for the payment of investment in the PaBC allegedly in the form of shares of stocks
amounting to US$2,531,632.18. The shares of stocks, consisting of 154,462 common
shares, constituted 11% of the total subscribed capital stock of the PaBC. They alleged that
their claim constituted foreign exchange capital investment entitled to preference in
payment under the Foreign Investments Law.
In his order dated September 11, 1992, respondent judge of the RTC directed the
Liquidator to pay private respondents the total amount of their claim as preferred creditors. 7
The Liquidator received the order on September 16, 1992. On September 30, 1992 he
moved for reconsideration, but his motion was denied by the court on October 2, 1992. He
received the order denying his Motion for Reconsideration on October 5, 1992. On October
14, 1992 he filed a Notice of Appeal from the orders of September 16, 1992 and October 2,
1992. As in the case of the Union, however, the judge ordered the Notice of Appeal stricken
off the record on the ground that it had been filed without authority of the Central Bank and
beyond 15 days. In his order of October 28, 1992, the judge directed the execution of his
September 11, 1992 order granting the Stockholders/ Investors' claim.
II.
Proceedings in the Court of Appeals
The Liquidator filed separate Petitions for Certiorari, Prohibition and Mandamus in the Court
of Appeals to set aside the orders of the trial court denying his appeal from the orders
granting the claims of Union and of the Stockholders/Investors. The two Divisions of the
Court of Appeals, to which the cases were separately raffled, rendered conflicting rulings.
In its decision of November 17, 1992 in CA-G.R. SP No. 27751 (now G.R. No. 09373) the
Fifth Division8 held in the case of the Union that the proceeding before the trial court was a
special proceeding and, therefore, the period for appealing from any decision or final order
rendered therein is 30 days. Since the notice of appeal of the Liquidator was filed on the
30th day of his receipt of the decision granting the Union's claims, the appeal was brought
on time. The Fifth Division, therefore, set aside the orders of the lower court and directed
the latter to give due course to the appeal of the Liquidator and set the Record on Appeal
he had filed for hearing.
On the other hand, on December 16, 1993, the Fourteenth Division9 ruled in CA-G.R. SP
No. 29351 (now G.R. No. 112991) in the case of the Stockholders/Investors that a
liquidation proceeding is an ordinary action. Therefore, the period for appealing from any
decision or final order rendered therein is 15 days and that since the Liquidator's appeal
notice was filed on the 23rd day of his receipt of the order appealed from, deducting the
period during which his motion for reconsideration was pending, the notice of appeal was
filed late. Accordingly, the Fourteenth Division dismissed the Liquidator's petition.
III.
Present Proceedings
The Union and the Liquidator then separately filed petitions before this Court.
In G.R. No. 109373 the Union contends that:
1. The Court of Appeals acted without jurisdiction over the subject
matter or nature of the suit.
2. The Court of Appeals gravely erred in taking cognizance of the
petition for certiorari filed by Naagas who was without any legal
authority to file it.
3. The Court of Appeals erred in concluding that the case is a special
proceeding governed by Rules 72 to 109 of the Revised Rules of
Court.
4. The Court of Appeals erred seriously in concluding that the notice of
appeal filed by Naagas was filed on time.
5. The Court of Appeals erred seriously in declaring that the second
notice of appeal filed on December 23, 1991 by the Solicitor General is
a superfluity.
On the other hand, in G.R. No. 112991 the Liquidator contends that:
1. The Petition for Assistance in the Liquidation of the Pacific Banking
Corporation s a Special Proceeding case and/or one which allows
multiple appeals, in which case the period of appeal is 30 days and not
15 days from receipt of the order/judgment appealed from.
2. Private respondents are not creditors of PaBC but are plain
stockholders whose right to receive payment as such would accrue
only after all the creditors of the insolvent bank have been paid.
3. The claim of private respondents in the amount of
US$22,531,632.18 is not in the nature of foreign investment as it is
understood in law.
4. The claim of private respondents has not been clearly established
and proved.
5. The issuance of a writ of execution against the assets of PaBC was
made with grave abuse of discretion.
The petitions in these cases must be dismissed.
First. As stated in the beginning, the principal question in these cases is whether a petition
for liquidation under 29 of Rep. Act No. 265 is in the nature of a special proceeding. If it is,
then the period of appeal is 30 days and the party appealing must, in addition to a notice of
appeal, file with the trial court a record on appeal in order to perfect his appeal. Otherwise,
if a liquidation proceeding is an ordinary action, the period of appeal is 15 days from notice
of the decision or final order appealed from.
BP Blg. 129 provides:
39. Appeals. The period for appeal from final orders, resolutions,
awards, judgments, or decisions of any court in all cases shall be
fifteen (15) days counted from the notice of the final order, resolution,
award, judgment or decision appealed from: Provided, however, that
in habeas corpus cases the period for appeal shall be forty-eight (48)
hours from the notice of the judgment appealed from.
No record on appeal shall be required to take an appeal. In lieu
thereof, the entire record shall be transmitted with all the pages
prominently numbered consecutively, together with an index of the
contents thereof.
This section shall not apply in appeals in special proceedings and in
other cases wherein multiple appeals are allowed under applicable
provisions of the Rules of Court.
The Interim Rules and Guidelines to implement BP Blg. 129 provides:
19. Period of Appeals.
(a) All appeals, except in habeas corpus cases
and in the cases referred to in paragraph (b)
hereof, must be taken within fifteen (15) days from
 notice of the judgment, order, resolution or award
appealed from.
(b) In appeals in special proceedings in
accordance with Rule 109 of the Rules of Court
and other cases wherein multiple appeals are
allowed, the period of appeals shall be thirty (30)
days, a record on appeal being required.
The Fourteenth Division of the Court of Appeals held that the proceeding is an ordinary
action similar to an action for interpleader under Rule 63. 10 The Fourteenth Division stated:
The petition filed is akin to an interpleader under Rule 63 of the Rules
of Court where there are conflicting claimants or several claims upon
the same subject matter, a person who claims no interest thereon may
file an action for interpleader to compel the claimants to "interplead"
and litigate their several claims among themselves. (Section I Rule 63).
An interpleader is in the category of a special civil action under Rule 62
which, like an ordinary action, may be appealed only within fifteen (15)
days from notice of the judgment or order appealed from. Under Rule
62, the preceding rules covering ordinary civil actions which are not
inconsistent with or may serve to supplement the provisions of the rule
relating to such civil actions are applicable to special civil actions. This
embraces Rule 41 covering appeals from the regional trial court to the
Court of Appeals.
xxx xxx xxx
Thus, under Section 1 Rule 2 of the Rules of Court, an action is
defined as "an ordinary suit in a court of justice by which one party
prosecutes another for the enforcement or protection of a right or the
prevention or redress of a wrong." On the other hand, Section 2 of the
same Rule states that "every other remedy including one to establish
the status or right of a party or a particular fact shall be by special
proceeding."
To our mind, from the aforequoted definitions of an action and a
special proceeding, the petition for assistance of the court in the
liquidation of an asset of a bank is not "one to establish the status or
right of a party or a particular fact." Contrary to the submission of the
petitioner, the petition is not intended to establish the fact of insolvency
of the bank. The insolvency of the bank had already been previously
determined by the Central Bank in accordance with Section 9 of the CB
Act before the petition was filed. All that needs to be done is to
liquidate the assets of the bank and thus the assistance of the
respondent court is sought for that purpose.
It should be pointed out that this petition filed is not among the cases
categorized as a special proceeding under Section 1, Rule 72 of the
Rules of Court, nor among the special proceedings that may be
appealed under Section 1, Rule 109 of the Rules.
We disagree with the foregoing view of the Fourteenth Division. Rule 2 of the Rules of
Court provide:
1. Action defined. Action means an ordinary suit in a court of
justice, by which the party prosecutes another for the enforcement or
protection of a right, or the prevention or redress of a wrong.
2. Special Proceeding Distinguished. Every other remedy,
including one to establish the status or right of a party or a particular
fact, shall be by special proceeding.
Elucidating the crucial distinction between an ordinary action and a special proceeding,
Chief Justice Moran states:" 11
Action is the act by which one sues another in a court of justice for the
enforcement or protection of a right, or the prevention or redress of a
wrong while special proceeding is the act by which one seeks to
establish the status or right of a party, or a particular fact. Hence,
action is distinguished from special proceeding in that the former is a
formal demand of a right by one against another, while the latter is but
a petition for a declaration of a status, right or fact. Where a party
litigant seeks to recover property from another, his remedy is to file an
action. Where his purpose is to seek the appointment of a guardian for
an insane, his remedy is a special proceeding to establish the fact or
status of insanity calling for an appointment of guardianship.
Considering this distinction, a petition for liquidation of an insolvent corporation should be
classified a special proceeding and not an ordinary action. Such petition does not seek the
enforcement or protection of a right nor the prevention or redress of a wrong against a
party. It does not pray for affirmative relief for injury arising from a party's wrongful act or
omission nor state a cause of action that can be enforced against any person.
What it seeks is merely a declaration by the trial court of the corporation's insolvency so
that its creditors may be able to file their claims in the settlement of the corporation's debts
and obligations. Put in another way, the petition only seeks a declaration of the
corporation's debts and obligations. Put in another way, the petition only seeks a
declaration of the corporation's state of insolvency and the concomitant right of creditors
and the order of payment of their claims in the disposition of the corporation's assets.
Contrary to the rulings of the Fourteenth Division, liquidation proceedings do not resemble
petitions for interpleader. For one, an action for interpleader involves claims on a subject
matter against a person who has no interest therein. 12 This is not the case in a liquidation A liquidation proceeding is commenced by the filing of a single petition
proceeding where the Liquidator, as representative of the corporation, takes charge of its by the Solicitor General with a court of competent jurisdiction entitled,
assets and liabilities for the benefit of the creditors. 13 He is thus charged with insuring that "Petition for Assistance in the Liquidation of e.g., Pacific Banking
the assets of the corporation are paid only to rightful claimants and in the order of payment Corporation. All claims against the insolvent are required to be filed
provided by law. with the liquidation court. Although the claims are litigated in the same
proceeding, the treatment is individual. Each claim is heard separately.
And the Order issued relative to a particular claim applies only to said
Rather, a liquidation proceeding resembles the proceeding for the settlement of state of
claim, leaving the other claims unaffected, as each claim is considered
deceased persons under Rules 73 to 91 of the Rules of Court. The two have a common
separate and distinct from the others. Obviously, in the event that an
purpose: the determination of all the assets and the payment of all the debts and liabilities
appeal from an Order allowing or disallowing a particular claim is
of the insolvent corporation or the estate. The Liquidator and the administrator or executor
made, only said claim is affected, leaving the others to proceed with
are both charged with the assets for the benefit of the claimants. In both instances, the
their ordinary course. In such case, the original records of the
liability of the corporation and the estate is not disputed. The court's concern is with the
proceeding are not elevated to the appellate court. They remain with
declaration of creditors and their rights and the determination of their order of payment.
the liquidation court. In lieu of the original record, a record of appeal is
instead required to be prepared and transmitted to the appellate court.
Furthermore, as in the settlement of estates, multiple appeals are allowed in proceedings
for liquidation of an insolvent corporation. As the Fifth Division of the Court of Appeals,
Inevitably, multiple appeals are allowed in liquidation proceedings.
quoting the Liquidator, correctly noted:
Consequently, a record on appeal is necessary in each and every
appeal made. Hence, the period to appeal therefrom should be thirty
A liquidation proceeding is a single proceeding which consists of a (30) days, a record on appeal being required. (Record pp. 162-164).
number of cases properly classified as "claims." It is basically a two-
phased proceeding. The first phase is concerned with the approval and
In G.R. No. 112991 (the case of the Stockholders/Investors), the Liquidator's notice of
disapproval of claims. Upon the approval of the petition seeking the
appeal was filed on time, having been filed on the 23rd day of receipt of the order granting
assistance of the proper court in the liquidation of a close entity, all
the claims of the Stockholders/Investors. However, the Liquidator did not file a record on
money claims against the bank are required to be filed with the
appeal with the result that he failed to perfect his appeal. As already stated a record on
liquidation court. This phase may end with the declaration by the
appeal is required under the Interim Rules and Guidelines in special proceedings and for
liquidation court that the claim is not proper or without basis. On the
cases where multiple appeals are allowed. The reason for this is that the several claims are
other hand, it may also end with the liquidation court allowing the claim.
actually separate ones and a decision or final order with respect to any claim can be
In the latter case, the claim shall be classified whether it is ordinary or
appealed. Necessarily the original record on appeal must remain in the trial court where
preferred, and thereafter included Liquidator. In either case, the order
other claims may still be pending.
allowing or disallowing a particular claim is final order, and may be
appealed by the party aggrieved thereby.
Because of the Liquidator's failure to perfect his appeal, the order granting the claims of the
Stockholders/Investors became final. Consequently. the Fourteenth Division's decision
The second phase involves the approval by the Court of the distribution
dismissing the Liquidator's Petition for Certiorari,Prohibition and Mandamus must be
plan prepared by the duly appointed liquidator. The distribution plan
affirmed albeit for a different reason.
specifies in detail the total amount available for distribution to creditors
whose claim were earlier allowed. The Order finally disposes of the
issue of how much property is available for disposal. Moreover, it On the other hand, in G.R. No. 109373 (case of the Labor Union), we find that the Fifth
ushers in the final phase of the liquidation proceeding payment of all Division correctly granted the Liquidator's Petition for Certiorari. Prohibition and Mandamus.
allowed claims in accordance with the order of legal priority and the As already noted, the Liquidator filed a notice of appeal and a motion for extension to file a
approved distribution plan. record on appeal on December 10, 1991, i.e., within 30 days of his receipt of the order
granting the Union's claim. Without waiting for the resolution of his motion for extension, he
filed on December 20, 1991 within the extension sought a record on appeal. Respondent
Verily, the import of the final character of an Order of allowance or
judge thus erred in disallowing the notice on appeal and denying the Liquidator's motion for
disallowance of a particular claim cannot be overemphasized. It is the
extension to file a record on appeal.
operative fact that constitutes a liquidation proceeding a "case where
multiple appeals are allowed by law." The issuance of an Order which,
by its nature, affects only the particular claims involved, and which may The Fifth Division of the Court of Appeals correctly granted the Liquidator's Petition
assume finality if no appeal is made therefrom, ipso factocreates a for Certiorari, Prohibition and Mandamus and its decision should, therefore, be affirmed.
situation where multiple appeals are allowed.
Second. In G.R. No. 109373, The Union claims that under 29 of Rep. Act No. 265, the
court merely assists in adjudicating the claims of creditors, preserves the assets of the
institution, and implements the liquidation plan approved by the Monetary Board and that,
therefore, as representative of the Monetary Board, the Liquidator cannot question the
order of the court or appeal from it. It contends that since the Monetary Board had
previously admitted PaBC's liability to the laborers by in fact setting aside the amount of
P112,234,292.44 for the payment of their claims, there was nothing else for the Liquidator
to do except to comply with the order of the court.

The Union's contention is untenable. In liquidation proceedings, the function of the trial
court is not limited to assisting in the implementation of the orders of the Monetary Board.
Under the same section (29) of the law invoked by the Union, the court has authority to set
aside the decision of the Monetary Board "if there is a convincing proof that the action is
plainly arbitrary and made in bad faith." 14 As this Court held in Rural Bank of Buhi,
Inc. v. Court of Appeals: 15

There is no question, that the action of the monetary Board in this

regard may be subject to judicial review. Thus, it has been held that the
Court's may interfere with the Central Bank's exercise of discretion in
determining whether or not a distressed bank shall be supported or
liquidated. Discretion has its limits and has never been held to include
arbitrariness, discrimination or bad faith (Ramos v. Central Bank of the
Philippines, 41 SCRA 567 [1971]).

In truth, the Liquidator is the representative not only of the Central Bank but also of the
insolvent bank. Under 28A-29 of Rep. Act No. 265 he acts in behalf of the bank
"personally or through counsel as he may retain, in all actions or proceedings or against the
corporation" and he has authority "to do whatever may be necessary for these purposes."
This authority includes the power to appeal from the decisions or final orders of the court
which he believes to be contrary to the interest of the bank.

Finally the Union contends that the notice of appeal and motion for extension of time to file
the record on appeal filed in behalf of the Central Bank was not filed by the office of the
Solicitor General as counsel for the Central Bank. This contention has no merit. On October
22, 1992, as Assistant Solicitor General Cecilio O. Estoesta informed the trial court in
March 27, 1992, the OSG had previously authorized lawyers of the PDIC to prepare and
sign pleadings in the case. 16 Conformably thereto the Notice of Appeal and the Motion for
Additional Time to submit Record on Appeal filed were jointly signed by Solicitor Reynaldo
I. Saludares in behalf of the OSG and by lawyers of the PDIC. 17

WHEREFORE, in G.R. No. 109373 and G.R. No 112991, the decisions appealed from are
AFFIRMED.
ARTURO BALBASTRO, JOSE PEREZ, EDGARDO DE LA CRUZ, LEONARDO
VILLANUEVA and CONSORCIA HALILI, petitioners, vs. COURT OF APPEALS, HON.
WALFRIDO DE LOS ANGELES, in his capacity as Judge of the Court of First Instance of
Rizal, Quezon City, Branch IV, and FRANCISCO E. FERNANDEZ, respondents.
Appeal by Certiorari from the decision dated January 20, 1971, of the Court of Appeals,
sustaining the orders of November 17, 1969 and May 18, 1970 of the Court of First
Instance of Rizal, Quezon City Branch IV, in Civil Case No. Q-13297, an action for
interpleader against Francisco E. Fernandez and Angela M. Butte, and also from the
resolution dated February 16, 1971 of the Special Division of the Court of Appeals denying
petitioners' motion for reconsideration.
The only issue raised in this Petition is whether or not the respondent Judge has committed
a grave abuse of discretion in allowing the inclusion of petitioners as parties in the
aforecited interpleader case on the basis of a pleading designated as "third-party
complaint" of respondent Francisco E. Fernandez.
The facts are undisputed. As correctly found by the Court of Appeals, on July 17, 1969,
Chiu Keng Iong, Lim Bun Kong and Rajindar Singh, lessees of three doors of a
10-door apartment situated at E. Rodriguez St., Quezon City, filed a complaint for
interpleader and consignation with the respondent Court of First Instance of Rizal, Quezon
City, Branch IV, which was docketed as Civil Case No. Q-13297 against private respondent
Francisco E. Fernandez and Angela M. Butte, each of whom was claiming ownership over
the aforementioned 10-door apartment and of the right to collect the rents therefrom. In
their complaint, plaintiffs alleged that they have no means of knowing definitely to whom
they should pay rentals whether to defendant Angela M. Butte or defendant Francisco E.
Fernandez.
In answer to plaintiffs' complaint defendant Francisco E. Fernandez alleged among others
that pending determination of the conflicting claims involved in the case he was granted
an ad interim authority to collect and deposit with the court the rentals due on the subject
property which authority was allegedly upheld by the Court of Appeals in its decision of July
17, 1970 in CA-G.R. No. 44341-R entitled Angela M. Butte vs. Francisco E. Fernandez. On
the other hand, defendant Angela M. Butte claims that being the owner of the 10-door
apartment in question, she has every right to collect the rents of the property.
On October 29, 1969, private respondent Francisco E. Fernandez filed a Third-Party
Complaint against the third-party defendants (petitioners herein) who are the lessees of the
remaining doors of the 10-door apartment because of their refusal to recognize the
authority of private respondent Francisco E. Fernandez to collect the rents on the doors
leased by them. The third-party defendants who are now the petitioners herein filed with the
respondent court a "Motion To Strike Out And/Or To Dismiss The Third-Party Complaint"
filed by Francisco E. Fernandez on the ground that the filing of said
Third-Party Complaint against them is in violation of the express provisions of Section 12,
Rule 6 of the Revised Rules of Court and not in accord with established jurisprudence on
the matter and on the further ground that said Third-Party Complaint does not state any
cause of action.
On November 14, 1969 private respondent Francisco E. Fernandez filed his opposition to
petitioners' Motion To Strike And/Or To Dismiss The Third-Party Complaint. The motion of
petitioners To Strike Out And/Or To Dismiss the third-party complaint, was denied by the
Court a quo on November 17, 1969, and upon receipt of the order of denial petitioners filed
a Motion for Reconsideration of the same. This motion for reconsideration was likewise
denied on May 18, 1970.
In due time petitioners appealed to the Court of Appeals and sought (1) to annul and set
aside the Order of the respondent Judge dated November 17, 1969, denying their Motion to
Strike Out and/or Dismiss the Third-Party Complaint and its Order of May 18, 1970 denying
their motion for reconsideration; (2) the dismissal of the Third-Party Complaint of October
28, 1969; and (3) to prohibit and restrain the respondent Judge from proceeding with the
hearing of the said Third-Party Complaint and/or said Civil Case No. Q-13297.
On January 20, 1971, the respondent Court of Appeals rendered its decision dismissing the
petition and dissolved the writ of preliminary injunction previously issued. A motion for
reconsideration filed by petitioners was denied on February 16, 1971 by respondent
Appellate Court. Hence this petition for certiorari.
In ruling for the private respondents, the Court of Appeals stated:
The focal issue in this petition is whether or not the respondent Judge
has committed a grave abuse of discretion in allowing the defendant
Francisco E. Fernandez in Civil Case No. Q-13297 (now respondent
herein) to file a third-party complaint against the third-party defendants.
It is well-settled in our jurisdiction that the admission of third-party
complaint is discretionary with the court. The exercise of this discretion
should of course be guided by well-established doctrines promulgated
by our courts. In the same case cited by the petitioners this Court held
that:
Leave to bring in a third-party should be granted
only if it will result in simplifying procedure,
expediting the litigation and reducing expenses.
(J.M. Tuason & Co., Inc. vs. Puno, CA-G.R. No.
25474-R, May 31, 1966).
Also in another case we held that:
Rule 6, Sec. 12, allows third-party complaint in
order to minimize the number of lawsuits and
avoid the necessity of bringing two or more actions
involving the same subject matter. (Republic of the
Philippines vs. Cleofe Ramos, et al., CA-G.R. No.
L-18911, April 27, 1967).
 Will the filing of the third-party complaint against the third-party
defendant results in simplifying procedure, expediting the litigation, and
reducing expenses of the parties in the present controversy? If it will,
then definitely the respondent court has not abused its discretion in
denying the motion of petitioners to strike out and or dismiss the third-
party complaint filed against them. It is admitted that both the plaintiffs
and the third-party defendants (who are petitioners herein) are the
common lessees of the 10-door apartment the ownership of which is
being litigated between defendant Angela M. Butte and third-party
plaintiff Francisco E. Fernandez. As such lessees they have the same
problem of determining the right person to whom they should pay the
corresponding rents of the particular doors they are occupying.
Because of the raging conflict between the defendant Angela M. Butte
and third-party plaintiff ultimately they would resort to an action for
interpleader against the conflicting claimant's of the subject property.
To require each of the petitioners to file an action for interpleader
against the conflicting claimants of the subject property will
undoubtedly go against the rule on multiplicity of suits. On the other
hand by allowing the filing of the third-party complaint against the
petitioners, the latter will not only be spared of the trouble of filing an
action for interpleader. It will likewise save the third-party plaintiff from
filing the necessary action for the collection of rents in case the
respondent court finally decides that said party-plaintiff is the one
entitled to collect the rents on the subject property. In our assessment
of the facts and circumstances, we are convinced that the respondent
court did what it considered was necessary to shorten the litigation
between the parties by allowing the settlement of related or similar
problems confronting them in one single proceeding and avoiding
multiplicity of actions. Certainly, this actuation cannot be challenged as
an abuse of discretion, much less a grave one.
Petitioners contending that the Appellate Court misapplied the applicable rule, and insisting
that the "Third-Party Complaint" in Civil Case No. Q-13297, does not fall within the context
of Section 12 of Rule of the Revised Rules of Court and that the court a quo in admitting the
aforesaid "third-party complaint" gravely abused its discretion, now raises those questions
to Us for review.
I liable to said defendant for contribution, indemnity, subrogation or any other relief in respect
Section 12 of Rule 6 of the Revised Rules of Court 1 authorizes a defendant to bring into a
lawsuit any person "not a party to the action ... for contribution, indemnity, subrogation or
any other relief in respect of his opponent's claim." From its explicit language it does not
compel the defendant to bring the third-parties into the litigation, rather it simply permits the
inclusion of anyone who meets the standard set forth in the rule. The secondary or
derivative liability of the third-party is central whether the basis is indemnity, subrogation,
contribution, express or implied warranty or some other theory. The impleader of new
parties under this rule is proper only when a right to relief exists under the applicable
substantive law.2 This rule is merely a procedural mechanism, and cannot be utilized unless
there is some substantive basis under applicable law.
Apart from the requirement that the third-party complainant should assert a derivative or
secondary claim for relief from the third-party defendant, there are other limitations on said
party's ability to implead. The rule requires that the third-party defendant is "not a party to
the action" for otherwise the proper procedure for asserting a claim against one who is
already a party to the suit is by means of counterclaim or
cross-claim under sections 6 and 7 of Rule 6. In addition to the aforecited requirement, the
claim against the third-party defendant must be based upon plaintiff's claim against the
original defendant (third-party claimant).3 The crucial characteristic of a claim under section
12 of Rule 6, is that the original "defendant is attempting to transfer to the
third-party defendant the liability asserted against him by the original plaintiff. 4
In Capayas v. Court of First Instance 5 this Court enunciated the same principle, when the
court ruled: "... when the law says that a third-party complaint may be filed with leave of
court, it refers to a complaint that alleges facts whichprima facie show that the defendant is
entitled against the third-party defendant to contribution, etc., etc. Otherwise the court can
not legally grant leave to a defendant to file it, because it would not be a third-party
complaint... The test to determine whether the claim for indemnity in a third-party complaint,
"in respect to plaintiff's claim" is, whether it arises out of the same transaction on which the
plaintiff's claim is based, or the third-party's claim, although arising out of another or
different contract or transaction, is connected with the plaintiff's claim."
The requirement that for a third-party complaint to be available the third-party defendant
must be liable secondarily to the original defendant in the event that the latter is held liable
to the plaintiff was reiterated in Commercial Bank & Trust Company of the Philippines v.
Republic Armored Car Service Corp. 6 where this Court thru Justice Labrador ruled that "a
third-party complaint is, under the Rules, available only if the defendant has a right to
demand contribution, indemnity, subrogation or any other relief from the supposed third-
party defendants in respect to the plaintiff's claim."
Absent therefore in the case at bar the nexus between petitioners as third-party defendants
and Francisco E. Fernandez, the third-party plaintiff, showing the existence of a secondary
or derivative liability of the former in favor of the latter "in respect of his opponent's claim"
the third-party action would not be proper.
On the issue therefore, as to whether or not section 12 of Rule 6 of the Rules authorizes a
defendant to bring into the case any person not a party to the action, who is not secondarily
to the claim of the plaintiff against the defendant, the answer appears plain. In the context
of the aforecited rule and applicable jurisprudence the answer must be in the negative.
II
Countervailing policy considerations, however, in view of the factual environment such as
the equity rule against multiplicity of suits precludes Us from reversing the challenged
decision.
As aptly stressed by the Appellate Tribunal, "it is admitted that both the plaintiffs and the
third-party defendants ... are the common lessees of the 10-door apartment the ownership
of which is being litigated between defendant Angela M. Butte and third-party plaintiff
Francisco E. Fernandez. As such lessees they have the same problem of determining the
right person to whom they should pay the corresponding rents of the particular doors they
are occupying. Because of the raging conflict between the defendant Angela M. Butte and
third-party plaintiff ultimately they would resort to an action for interpleader against the
conflicting claimants of the subject property. To require each of the petitioner to file an
action for interpleader against the conflicting claimants of the subject property will
undoubtedly go against the rule on multiplicity of suits... In our assessment of the facts and
circumstances, We are convinced that the respondent court did what it considered was
necessary to shorten the litigation between the parties by allowing them in one single
proceeding and avoiding multiplicity of actions." The correctness of this factual observation
cannot be seriously disputed. Of course petitioners suggest that the question as who
should be entitled to collect the rentals of the apartment must be ventilated in the case for
rescission and damages between Angela M. Butte and Francisco E. Fernandez, pending
before another court, but such a suggestion does not solve the problem. It cannot be
denied that Civil Case No. Q-13292, subject of this appeal by certiorari, presents only one
question, and that is who of the defendants therein are entitled to collect the rentals?
Undoubtedly, it would be to the interests of all concerned, if all of the tenants of the
10-door apartment were included in the suit. The findings of the Appellate Court that
petitioners are, all common lessees of the apartment is conclusive upon Us. The inclusion
of the other tenants would necessarily do away and avoid the filing of independent actions,
with the inevitable trouble, expense and loss of time it would entail. The leading principle in
our system of procedure is the avoidance of multiplicity of suits and whenever possible, to
permit and sometimes require the parties to thresh out in one litigation all claims which
arise out of the same transaction.

Faithful adherence to the aforecited principle compels Us to view the inclusion of petitioners
not as third-party defendants but as proper parties in the action because "there is a
question of law or fact common to the right or duty in which" they are "interested and
another right sought to be enforced in the action."7 The act of the court a quo in permitting
their joinder is sanctioned by section 6 of Rule 3 of the Revised Rules of Court. Section 6,
which is taken from Rule 20 (a) and (b) of the Federal Rules of Civil Procedure, "is based
on trial convenience and is designed to permit joinder of plaintiffs or defendants whenever
there is a common question of law or fact."8 Since rules on joinder of parties must be
allowed considerable flexibility to meet the requirements of justice and convenience and
considering the broad discretion of the Courts in determining who are properly to be joined,
the action of the trial court in the case at bar allowing the joinder of petitioners, to settle in
the most convenient manner the question as to whom the tenants should pay the rentals, in
one single proceedings could not therefore be considered as a grave abuse of discretion.

WHEREFORE, finding no error in the decision of the Court of Appeals now under review,
the petition is hereby dismissed. Without costs.
WACK WACK GOLF & COUNTRY CLUB, INC., plaintiff-appellant, vs. LEE E. WON alias
RAMON LEE and BIENVENIDO A. TAN, defendants-appellees.
This is an appeal from the order of the Court of First Instance of Rizal, in civil case 7656,
dismissing the plaintiff-appellant's complaint of interpleader upon the grounds of failure to
state a cause of action and res judicata.
In its amended and supplemental complaint of October 23, 1963, the Wack Wack Golf &
Country Club, Inc., a non-stock, civic and athletic corporation duly organized under the laws
of the Philippines, with principal office in Mandaluyong, Rizal (hereinafter referred to as the
Corporation), alleged, for its first cause of action, that the defendant Lee E. Won claims
ownership of its membership fee certificate 201, by virtue of the decision rendered in civil
case 26044 of the CFI of Manila, entitled "Lee E. Won alias Ramon Lee vs. Wack Wack
Golf & Country Club, Inc." and also by virtue of membership fee certificate 201-serial no.
1478 issued on October 17, 1963 by Ponciano B. Jacinto, deputy clerk of court of the said
CFI of Manila, for and in behalf of the president and the secretary of the Corporation and of
the People's Bank & Trust Company as transfer agent of the said Corporation, pursuant to
the order of September 23, 1963 in the said case; that the defendant Bienvenido A. Tan, on
the other hand, claims to be lawful owner of its aforesaid membership fee certificate 201 by
virtue of membership fee certificate 201-serial no. 1199 issued to him on July 24, 1950
pursuant to an assignment made in his favor by "Swan, Culbertson and Fritz," the original
owner and holder of membership fee certificate 201; that under its articles of incorporation
and by-laws the Corporation is authorized to issue a maximum of 400 membership fee
certificates to persons duly elected or admitted to proprietary membership, all of which have
been issued as early as December 1939; that it claims no interest whatsoever in the said
membership fee certificate 201; that it has no means of determining who of the two
defendants is the lawful owner thereof; that it is without power to issue two separate
certificates for the same membership fee certificate 201, or to issue another membership
fee certificate to the defendant Lee, without violating its articles of incorporation and by-
laws; and that the membership fee certificate 201-serial no. 1199 held by the defendant
Tan and the membership fee certificate 201-serial No. 1478 issued to the defendant Lee
proceed from the same membership fee certificate 201, originally issued in the name of
"Swan, Culbertson and Fritz".
For its second cause of action. it alleged that the membership fee certificate 201-serial no.
1478 issued by the deputy clerk of court of court of the CFI of Manila in behalf of the
Corporation is null and void because issued in violation of its by-laws, which require the
surrender and cancellation of the outstanding membership fee certificate 201 before
issuance may be made to the transferee of a new certificate duly signed by its president
and secretary, aside from the fact that the decision of the CFI of Manila in civil case 26044
is not binding upon the defendant Tan, holder of membership fee certificate 201-serial no.
1199; that Tan is made a party because of his refusal to join it in this action or bring a
separate action to protect his rights despite the fact that he has a legal and beneficial
interest in the subject matter of this litigation; and that he is made a part so that complete
relief may be accorded herein.
The Corporation prayed that (a) an order be issued requiring Lee and Tan to interplead and
litigate their conflicting claims; and (b) judgment. be rendered, after hearing, declaring who
of the two is the lawful owner of membership fee certificate 201, and ordering the surrender
and cancellation of membership fee certificate 201-serial no. 1478 issued in the name of
Lee.
In separate motions the defendants moved to dismiss the complaint upon the grounds
of res judicata, failure of the complaint to state a cause of action, and bar by
prescription. 1 These motions were duly opposed by the Corporation. Finding the grounds
of bar by prior judgment and failure to state a cause of action well taken, the trial court
dismissed the complaint, with costs against the Corporation.
In this appeal, the Corporation contends that the court a quo erred (1) in finding that the
allegations in its amended and supplemental complaint do not constitute a valid ground for
an action of interpleader, and in holding that "the principal motive for the present action is to
reopen the Manila Case and collaterally attack the decision of the said Court"; (2) in finding
that the decision in civil case 26044 of the CFI of Manila constitutes res judicata and bars
its present action; and (3) in dismissing its action instead of compelling the appellees to
interplead and litigate between themselves their respective claims.
The Corporations position may be stated elsewise as follows: The trial court erred in
dismissing the complaint, instead of compelling the appellees to interplead because there
actually are conflicting claims between the latter with respect to the ownership of
membership fee certificate 201, and, as there is not Identity of parties, of subject-matter,
and of cause of action, between civil case 26044 of the CFI of Manila and the present
action, the complaint should not have been dismissed upon the ground of res judicata.
On the other hand, the appellees argue that the trial court properly dismissed the complaint,
because, having the effect of reopening civil case 26044, the present action is barred
by res judicata.
Although res judicata or bar by a prior judgment was the principal ground availed of by the
appellees in moving for the dismissal of the complaint and upon which the trial court
actually dismissed the complaint, the determinative issue, as can be gleaned from the
pleadings of the parties, relates to the propriety and timeliness of the remedy of
interpleader.
The action of interpleader, under section 120 of the Code of Civil Procedure, 2 is a remedy
whereby a person who has personal property in his possession, or an obligation to render
wholly or partially, without claiming any right to either, comes to court and asks that the
persons who claim the said personal property or who consider themselves entitled to
demand compliance with the obligation, be required to litigate among themselves in order
to determine finally who is entitled to tone or the one thing. The remedy is afforded to
protect a person not against double liability but against double vexation in respect of one
liability. 3 The procedure under the Rules of Court 4 is the same as that under the Code of
Civil Procedure, 5 except that under the former the remedy of interpleader is available
regardless of the nature of the subject-matter of the controversy, whereas under the latter
an interpleader suit is proper only if the subject-matter of the controversy is personal
property or relates to the performance of an obligation.
There is no question that the subject matter of the present controversy, i.e., the
membership fee certificate 201, is proper for an interpleader suit. What is here disputed is
the propriety and timeliness of the remedy in the light of the facts and circumstances
obtaining.
A stakeholder 6 should use reasonable diligence to hale the contending claimants to
court. 7 He need not await actual institution of independent suits against him before filing a
bill of interpleader. 8 He should file an action of interpleader within a reasonable time after a
dispute has arisen without waiting to be sued by either of the contending
claimants. 9 Otherwise, he may be barred by laches 10 or undue delay. 11 But where he acts
with reasonable diligence in view of the environmental circumstances, the remedy is not
barred. 12
Has the Corporation in this case acted with diligence, in view of all the circumstances, such
that it may properly invoke the remedy of interpleader? We do not think so. It was aware of
the conflicting claims of the appellees with respect to the membership fee certificate 201
long before it filed the present interpleader suit. It had been recognizing Tan as the lawful
owner thereof. It was sued by Lee who also claimed the same membership fee certificate.
Yet it did not interplead Tan. It preferred to proceed with the litigation (civil case 26044) and
to defend itself therein. As a matter of fact, final judgment was rendered against it and said
judgment has already been executed. It is not therefore too late for it to invoke the remedy
of interpleader.
It has been held that a stakeholder's action of interpleader is too late when filed after
judgment has been rendered against him in favor of one of the contending
claimants, 13 especially where he had notice of the conflicting claims prior to the rendition of
the judgment and neglected the opportunity to implead the adverse claimants in the suit
where judgment was entered. This must be so, because once judgment is obtained against
him by one claimant he becomes liable to the latter. 14 In once case, 15 it was declared:
The record here discloses that long before the rendition of the
judgment in favor of relators against the Hanover Fire Insurance
Company the latter had notice of the adverse claim of South to the
proceeds of the policy. No reason is shown why the Insurance
Company did not implead South in the former suit and have the
conflicting claims there determined. The Insurance Company elected
not to do so and that suit proceeded to a final judgment in favor of
relators. The Company thereby became independently liable to
relators. It was then too late for such company to invoke the remedy of
interpleader
The Corporation has not shown any justifiable reason why it did not file an application for
interpleader in civil case 26044 to compel the appellees herein to litigate between
themselves their conflicting claims of ownership. It was only after adverse final judgment
was rendered against it that the remedy of interpleader was invoked by it. By then it was
too late, because to he entitled to this remedy the applicant must be able to show that lie
has not been made independently liable to any of the claimants. And since the Corporation
is already liable to Lee under a final judgment, the present interpleader suit is clearly
improper and unavailing.
It is the general rule that before a person will be deemed to be in a
position to ask for an order of intrepleader, he must be prepared to
show, among other prerequisites, that he has not become
independently liable to any of the claimants. 25 Tex. Jur. p. 52, Sec. 3;
30 Am. Jur. p. 218, Section 8.
It is also the general rule that a bill of interpleader comes too late when
it is filed after judgment has been rendered in favor of one of the
claimants of the fund, this being especially true when the holder of the
funds had notice of the conflicting claims prior to the rendition of the
judgment and had an opportunity to implead the adverse claimants in
the suit in which the judgment was rendered. United Procedures Pipe
Line Co. v. Britton, Tex. Civ. App. 264 S.W. 176; Nash v. McCullum,
Tex. Civ. 74 S.W. 2d 1046; 30 Am. Jur. p. 223, Sec. 11; 25 Tex. Jur. p.
56, Sec. 5; 108 A.L.R., note 5, p. 275. 16
Indeed, if a stakeholder defends a suit filed by one of the adverse claimants and allows said
suit to proceed to final judgment against him, he cannot later on have that part of the
litigation repeated in an interpleader suit. In the case at hand, the Corporation allowed civil
case 26044 to proceed to final judgment. And it offered no satisfactory explanation for its
failure to implead Tan in the same litigation. In this factual situation, it is clear that this
interpleader suit cannot prosper because it was filed much too late.
If a stakeholder defends a suit by one claimant and allows it to proceed
so far as a judgment against him without filing a bill of interpleader, it
then becomes too late for him to do so. Union Bank v. Kerr, 2 Md. Ch.
460; Home Life Ins. Co. v. Gaulk, 86 Md. 385, 390, 38 A. 901; Gonia v.
O'Brien, 223 Mass. 177, 111 N.E. 787. It is one o the main offices of a
bill of interpleader to restrain a separate proceeding at law by claimant
so as to avoid the resulting partial judgment; and if the stakeholder
acquiesces in one claimant's trying out his claim and establishing it at
law, he cannot then have that part of the litigation repeated in an
interpleader suit. 4 Pomeroy's Eq. Juris. No. 162; Mitfor's Eq. Pleading
(Tyler's Ed.) 147 and 236; Langdell's Summary of Eq. Pleading, No.
162' De Zouche v. Garrizon, 140 Pa. 430, 21 A/450. 17
It is the general rule that a bill of interpleader comes too late when
application therefore is delayed until after judgment has been rendered
in favor of one of the claimants of the fund, and that this is especially
true where the holder of the fund had notice of the conflicting claims
prior to the rendition of such judgment and an opportunity to implead
the adverse claimants in the suit in which such judgment was
rendered. (See notes and cases cited 36 Am. Dec. 703, Am. St. Rep.
598, also 5 Pomeroy's Eq. Juris. Sec. 41.)
 The evidence in the opinion of the majority shows beyond dispute that
the appellant permitted the Parker county suit to proceed to judgment
in favor of Britton with full notice of the adverse claims of the
defendants in the present suit other than the assignees of the judgment
(the bank and Mrs. Pabb) and no excuse is shown why he did not
implead them in the suit. 18
To now permit the Corporation to bring Lee to court after the latter's successful
establishment of his rights in civil case 26044 to the membership fee certificate 201, is to
increase instead of to diminish the number of suits, which is one of the purposes of an
action of interpleader, with the possibility that the latter would lose the benefits of the
favorable judgment. This cannot be done because having elected to take its chances of
success in said civil case 26044, with full knowledge of all the fact, the Corporation must
submit to the consequences of defeat.
The act providing for the proceeding has nothing to say touching the
right of one, after contesting a claim of one of the claimants to final
judgment unsuccessfully, to involve the successful litigant in litigation
anew by bringing an interpleader action. The question seems to be one
of first impression here, but, in other jurisdictions, from which the
substance of the act was apparently taken, the rule prevails that the
action cannot be resorted to after an unsuccessful trial against one of
the claimants.
It is well settled, both by reasons and authority, that one who asks the
interposition of a court of equity to compel others, claiming property in
his hands, to interplead, must do so before putting them to the test of
trials at law. Yarborough v. Thompson, 3 Smedes & M. 291 (41 Am.
Dec. 626); Gornish v. Tanner, 1 You. & Jer. 333; Haseltine v. Brickery,
16 Grat. (Va.) 116. The remedy by interpleader is afforded to protect
the party from the annoyance and hazard of two or more actions
touching the same property or demand; but one who, with knowledge
of all the facts, neglects to avail himself of the relief, or elects to take
the chances for success in the actions at law, ought to submit to the
consequences of defeat. To permit an unsuccessful defendant to
compel the successful plaintiffs to interplead, is to increase instead of
to diminish the number of suits; to put upon the shoulders of others the
burden which he asks may be taken from his own. ....'
It is urged, however, that the American Surety Company of New York
was not in position to file an interpleader until it had tested the claim of
relatrix to final judgment, and that, failing to meet with success, it
promptly filed the interpleader. The reason why, it urges, it was not in
such position until then is that had it succeeded before this court in
sustaining its construction of the bond and the law governing the bond,
it would not have been called upon to file an interpleader, since there
would have been sufficient funds in its hands to have satisfied all lawful
claimants. It may be observed, however, that the surety company was
acquainted with all of the facts, and hence that it simply took its
chances of meeting with success by its own construction of the bond
and the law. Having failed to sustain it, it cannot now force relatrix into
litigation anew with others, involving most likely a repetition of what has
been decided, or force her to accept a pro rata part of a fund, which is
far from benefits of the judgment. 19
Besides, a successful litigant cannot later be impleaded by his defeated adversary in an
interpleader suit and compelled to prove his claim anew against other adverse claimants,
as that would in effect be a collateral attack upon the judgment.
The jurisprudence of this state and the common law states is well-
settled that a claimant who has been put to test of a trial by a surety,
and has establish his claim, may not be impleaded later by the surety
in an interpleader suit, and compelled to prove his claim again with
other adverse claimants. American Surety Company of New York v.
Brim, 175 La. 959, 144 So. 727; American Surety Company of New
York v. Brim (In Re Lyong Lumber Company), 176 La. 867, 147 So.
18; Dugas v. N.Y. Casualty Co., 181 La. 322, 159 So. 572; 15 Ruling
Case Law, 228; 33 Corpus Juris, 477; 4 Pomeroy's Jurisprudence,
1023; Royal Neighbors of America v. Lowary (D.C.) 46 F2d
565; Brackett v. Graves, 30 App. Div. 162, 51 N.Y.S. 895; De Zouche
v. Garrison, 140 Pa. 430, 21 A. 450, 451; Manufacturer's Finance Co.
v. W.I. Jones Co. 141 Ga., 519, 81 S.E. 1033; Hancock Mutual Life Ins.
Co. v. Lawder, 22 R.I. 416, 84 A. 383.
There can be no doubt that relator's claim has been finally and
definitely established, because that matter was passed upon by three
courts in definitive judgments. The only remaining item is the value of
the use of the land during the time that relator occupied it. The case
was remanded solely and only for the purpose of determining the
amount of that credit. In all other aspects the judgment is final. 20
It is generally held by the cases it is the office of interpleader to protect
a party, not against double liability, but against double vexation on
account of one liability. Gonia v. O'Brien, 223 Mass. 177, 111 N.E. 787.
And so it is said that it is too late for the remedy of interpleader if the
party seeking this relef has contested the claim of one of the parties
and suffered judgment to be taken.
In United P.P.I. Co. v. Britton (Tex. Civ. App.) 264 S.W. 576. 578, it
was said: 'It is the general rule that a bill of interpleader comes too late
when application therefor is delayed until after judgment has been
rendered in favor of one of the claimants of the fund, and this is
especially true where the holder of the fund had notice of the conflicting
claims prior to the rendition of such judgment and an opportunity to
implead the adverse claimants in the suit in which such judgment was
 rendered. See notes and cases cited 35 Am. Dec. 703; 91 An. St. Rep.
598; also 5 Pomeroy's Equity Jurisprudence No. 41.'

The principle thus stated has been recognized in many cases in other
jurisdictions, among which may be cited American Surety Co. v.
O'Brien, 223 Mass. 177, 111 N.E. 787; Phillips v. Taylor, 148 Md. 157,
129 A. 18; Moore v. Hill, 59 Ga. 760, 761; Yearborough v. Thompson,
3 Smedes & M. (11 Miss.) 291, 41 Am. Dec. 626. See, also, 33 C.J. p.
447, No. 30; Nash v. McCullum, (Tex. Civ. App.) 74 S.W. 2d 1042,
1047.

It would seem that this rule should logically follow since, after the
recovery of judgment, the interpleading of the judgment creditor is in
effect a collateral attack upon the judgment. 21

In fine, the instant interpleader suit cannot prosper because the Corporation had already
been made independently liable in civil case 26044 and, therefore, its present application
for interpleader would in effect be a collateral attack upon the final judgment in the said civil
case; the appellee Lee had already established his rights to membership fee certificate 201
in the aforesaid civil case and, therefore, this interpleader suit would compel him to
establish his rights anew, and thereby increase instead of diminish litigations, which is one
of the purposes of an interpleader suit, with the possiblity that the benefits of the final
judgment in the said civil case might eventually be taken away from him; and because the
Corporation allowed itself to be sued to final judgment in the said case, its action of
interpleader was filed inexcusably late, for which reason it is barred by laches or
unreasonable delay.

ACCORDINGLY, the order of May 28, 1964, dismissing the complaint, is affirmed, at
appellant's cost.
ETERNAL GARDENS MEMORIAL PARK CORPORATION, petitioner, vs. COURT OF
APPEALS and NORTH PHILIPPINE UNION MISSION OF THE SEVENTH DAY
ADVENTIST, respondents.
This case if the derivative of G.R. No. 73794, which was decided by the Second Division of
this Court on September 19, 1988.1
The antecedents are as follows:2
Petitioner EGMPC and private respondent NPUM entered into a Land Development
Agreement dated October 6, 1976. Under the agreement, EGMPC was to develop a parcel
of land owned by NPUM into a memorial park subdivided into lots. The parties further
agreed
Gardens [to] deposit whatever amounts are due from it under the Land Development
Agreement with a reputable bank to be designated by the respondent court." 4
In the Decision of September 19, 1988, the court ruled thus:
PREMISES CONSIDERED, (a) the petition is DISMISSED for lack of merit: (b)
this case (together with all the claims of the intervenors on the merits) is
REMANDED to the lower court for further proceedings; and (c) the Resolution of
the Third Division of this Court of July 8, 1987 requiring the deposit by the
petitioner (see footnote 6)5 of the amounts contested in a depository bank
STANDS (the Motion for Reconsideration thereof being hereby DENIED for
reasons already discussed) until after the decision on the merits shall have
become final and executory. Entry of judgment was made on April 24, 1989. 6

Sometime thereafter, the trial court rendered decisions in Civil Case Nos. 9556
(d) THAT the FIRST PARTY shall receive forty (40%) percent of the gross
(interpleader) and C-11836 (quieting of title). These decisions were appealed to the Court
collection less Perpetual Care Fees (which in no case shall exceed 10% of the
of Appeals, and the appeals were consolidated.
price per lot unless otherwise agreed upon by both parties in writing) or Net
Gross Collection (NGC) from this project. This shall be remitted monthly by the
SECOND PARTY in the following manner: (i) Forty (40%) percent of the NGC, The appellate court rendered judgment in the consolidated case on December 17, 1991 as
plus (ii) if it becomes necessary for the FIRST PARTY to vacate the property follows: (a) the trial court's decision in Civil Case No. 9556 was affirmed insofar as it
earlier than two years from the date of this agreement, at the option of the FIRST dismissed the claims of the intervenors, including the Maysilo Estate, and the titles of
PARTY, an additional amount equivalent to twenty (20%) percent of the NGC as NPUM to the subject parcel of land were declared valid; and (b) the trial court's decision in
cash advance for the first four (4) years with interest at twelve (12%) percent per Civil Case No. C-11836 in favor of the Singson heirs was reversed and set aside.7
annum which cash advance shall be deductible out of the proceeds from the
FIRST PARTY's 40% from the 5th year onward. The SECOND PARTY further
From the consolidated decision, the Singson heirs, Maysilo Estate and EGMPC each filed
agrees that if the FIRST PARTY shall desire to have its projected receivables
with this Court their petitions for review on certiorari. The petition filed by the Singson heirs
collected at the 5th year, the SECOND PARTY shall assist in having the same
docketed as G.R. No. 103247-48 was denied for failure to comply with Circular No. 28-
discounted in advance.
91,8 and entry of judgment made on July 27, 1992 G.R. No. 105159 filed by the Maysilo
Estate was denied for failure of petitioner to raise substantial legal issues, 9 and entry of
The P1.5 million initial payment mentioned in the Deed of Absolute Sale, judgment made on August 19, 1992. G.R. Nos. 103230-31 filed by EGMPC was denied for
covering the first phase of the project, shall be deducted out of the proceeds from failure to comply with Circular No. 19-91,10 and entry of judgment made on July 20, 1993.
the FIRST PARTY's 40% at the end of the 5th year. Subsequent payments made EGMPC's other petition, this time under Rule 65, docketed as G.R. Nos. 107646-47 was
by the SECOND PARTY on account of the stated purchase price in said Deed of dismissed for having been filed out of time and for lack of merit.
Absolute Sale shall be charged against what is due to the FIRST PARTY under
this LAND DEVELOPMENT AGREEMENT.3
Following these, the Court, through the Third Division, issued a Resolution dated December
1, 1993 in G.R. No. 73794, thus:
Later, two claimants of the parcel of land surfaced Maysilo Estate and the heirs of a
certain Vicente Singson Encarnacion. EGMPC thus filed an action for interpleader against
WHEREFORE, considering that the ownership of the property in dispute has now
Maysilo Estate and NPUM, docketed as Civil Case No. 9556 before the Regional Trial
been settled with finality, the Court sees no further legal obstacle in carrying out
Court of Kalookan City, Branch 120. The Singson heirs in turn filed an action for quieting of
the respective covenants of the parties to the Land Development Agreement. . .
title against EGMPC and NPUM, docketed as Civil Case No. C-11836 before Branch 122 of
In respect to the mutual accounting required to determine the remaining accrued
the same court.
rights and liabilities of said parties, the case is hereby remanded to the Court of
Appeals for proper determination and disposition.
From these two cases, several proceedings ensued. One such case, from the interpleader
action, culminated in the filing and subsequent resolution of G.R. No. 73794. In G.R. No
All other incidental motions involving G.R. No. 73794, still pending with this
73794, EGMPC assailed the appellate court's resolution requiring "petitioner Eternal
Court, are hereby, declared MOOT and are NOTED WITHOUT ACTION.11
In compliance with the Supreme Court resolution, the Court of Appeals proceeded with the A-3 EGMPC Daily Sales Report which shows that from 1978, 1979, 1980 and 1981
disposition of the case, docketed therein as CA G.R. SP No. 04869, and required the EGMPC has sold 19,237 memorial lots with gross sales amounting to P52,421,879.70.
parties to appear at a scheduled hearing on June 16, 1994, "with counsel and accountants,
as well as books of accounts and related records,' to determine the remaining accrued
A-3a Machine copy of EGMPC Daily Sales Report dated December 29, 1979 showing that
rights and liabilities of said
in 1978 it sold 2,805 memorial lots valued at P5591,716.40 and in 1979 it sold 5,503
parties."12
memorial lots valued at P11,943,631.00.

Citing the following provision of the land development agreement:

A-3a-1 Weekly Sales Report of EGMPC corresponding to the period December 26 to 31,
1979, showing cumulatively as of said date it has sold a total of 5,503 memorial lots from
(e) THAT the SECOND PARTY shall keep proper books and accounting records January 1 to December 29, 1979.
of all transactions affecting the sale of said memorial lots, which records shall be
open for inspection by the FIRST PARTY at any time during usual office hours.
A-3a-2 Sales Report of EGMPC for the period February 12 to 18, 1980.
The SECOND PARTY shall also render to the FIRST PARTY a monthly
accounting report of all sales and cash collections effected the preceding month.
It is also understood that all financial statements shall be subject to annual audit A-3a-4 Letter of Gabriel O. Vida, Executive Vice President and General Manager of
by a reputable external accounting firm which should be acceptable to the FIRST EGMPC, dated April 9, 1980, to Pastor Bienvenido Capuli stating among others that for the
PARTY.13 year 1978, EGMPC has sold 2,805 memorial lots and in the first quarter of 1980 from
January 1 to April 2, it has sold 2,418 memorial lots, for a total gross sales of 10,730
memorial lots.
the appellate court required EGMPC to produce at the scheduled hearings the following
documents:
A-3b EGMPC Daily Sales Report which show that from 1978 up to December 9, 1980 it has
sold a total of 15,253 memorial lots with sales value of P38,085,299.40.
(a) statements of monthly gross income from the year 1981, supported by copies
of the contracts/agreements of the sale of lots to buyers/customers; and
A-3b-1 Are supporting sales records and/or weekly sales report of EGMPC
(b) summary statements, by month, of the forty per cent (40%) share in the "net
gross" income under the land development agreement between the parties. 14 A-3b-2 in relation to Exhibit "A-3b."

The accounting of the parties' respective obligations was referred to the Court's A-3b-3
Accountant, Mrs. Carmencita Angelo, with the concurrence of the parties, to whom the
documents were to be submitted.15
A-3b-4

NPUM prepared and submitted a Summary of Sales and Total Amounts Due based on the
following documents it likewise submitted to the court.16 A-3b-5

A-1 Land Development Agreement executed between NPUM and EGMPC on October 6,
1976.
A-2 Submittal of requirements filed by EGMPC to the Securities and Exchange Commission
dated July 26, 1976 re: its application to develop, sell and maintain a first class private
cemetery part situated in Baesa, Kalookan City on the 23 has. property of PUC of NPUM.
EGMPC's application calls for the development of 31,326 lawn type memorial lots for
underground and above ground interment, and 20,808 garden and family/estates memorial
lots for above ground interment, or a total of 52,134 memorial lots.
A-3b-6
A-3b-7
A-4 Audited Financial Statement of EGMPC for 1985 which it filed with the Securities and
Exchange Commission on April 16, 1986 pursuant to the reportorial requirements of the
SEC, with accompanying balance sheet and statement of income and expenses, consisting
of five (5) pages.
A-5 Actual Gross Profit Rate of EGMPC for the year 1985 which shows that it sold 3,623
memorial lots valued at P25,299,601.20.
A-6 Machine copy of Assumptions to Projected Cash Flow and Income Statements E Price List of Memorial Lots of HIMLAYANG PILIPINO, INC.
prepared by EGMPC with assumptions that the 52,000 memorial lots would be sold and
that 15% of total sales per year are cash sales and 85% are on installment and that
E-1 effective January 23, 1984.
installment sales are payable over a period of 60 moths at 12% interest per annum.

E-2
A-7 Formula for Computation of Interest Income for Lots Sold on Installment.

F Price List of Memorial Lots of HIMLAYANG PILIPINO, INC.

A-8 Sales Price Analysis based on Lawn Class Memorial Lots for the period 1978 to 1988,
inclusive.
F-1 effective July 9, 1984.
A-8a Price list issued by EGMPC effective December 1, 1977.
F-2
A-9 Computation of interest due for the use of NPUM share.
G Price List of Memorial Lots of HIMLAYANG PILIPINO, INC.
A-9a Letter dated April 11, 1983 of Alfonso P. Roda, President of PUC of NPUM showing
summary of gross collections from memorial lots sales starting January 1978 up to June G-1 effective March 1, 1985.
1982, inclusive, per computation given to PUC by EGMPC.
G-2
A-9b Are validating documents consisting of accounting ledgers
H Price List of Memorial Lots of HIMLAYANG PILIPINO, INC. effective July 1, 1987.
A-9c in support of the computations given by EGMPC to PUC
I Price List of Memorial Lots of HIMLAYANG PILIPINO, INC. effective January 4, 1989.
A-9d as mentioned in Dr. Roda's Letter dated April 11, 1983.
J Price List of Memorial Lots of HIMLAYANG PILIPINO, INC. effective August 2, 1989.
A-10 Promissory Note of EGMPC dated April 6, 1976 issued to NPUM for a loan of
P720,000 for which EGMPC agreed to pay 12% interest per annum.
K Price List of Memorial Lots of HIMLAYANG PILIPINO, INC.

B Price List of Memorial Lots of HIMLAYANG PILIPINO, INC.

K-1 effective February 4, 1990.

B-1 effective February 3, 1981.

L Price List of Memorial Lots of HIMLAYANG PILIPINO, INC. effective February 2, 1991.

C Price List of Memorial Lots of HIMLAYANG PILIPINO, INC.

M Price List of Memorial Lots of HIMLAYANG PILIPINO, INC.

C-1 effective March 15, 1982.

M-1 effective October 2, 1991.

C-2
N Price List of Memorial Lots of HIMLAYANG PILIPINO, INC.

D- Price List of Memorial Lots of HIMLAYANG PILIPINO, INC.

N-1 effective February 5, 1992.

D-1 effective February 18, 1983.

O Price List of Memorial Lots of HIMLAYANG PILIPINO, INC. effective October 9, 1992.

D-2
P Price List of Memorial Lots of HIMLAYANG PILIPINO, INC. effective January 15, 1993. W Price List of Memorial Lots of HOLY CROSS MEMORIAL

Q Price List of Memorial Lots of HIMLAYANG PILIPINO, INC. effective February 16, 1993. W-1 PARK effective December 1, 1987.

R Price List of Memorial Lots of HIMLAYANG PILIPINO, INC. W-2

R-1 effective March 16, 1993. W-3

S Price List of Memorial Lots of HIMLAYANG PILIPINO, INC. It appears that EGMPC did not submit any document whatsoever to aid the appellate court
in its mandated task. Thus, in a Resolution dated January 19, 1995, the appellate court
declared.
S-1 effective September 15, 1993.

. . . (1) that Eternal Gardens Memorial Park Corporation has waived its right to
T Price List of Memorial Lots of MANILA MEMORIAL PARK
present the records and documents necessarily for accounting, which records
they were specifically required to preserve under the parties' Land Development
T-1 effective January 1, 1985. Agreement, and (2) that it will now proceed "to the mutual accounting required to
determine the remaining accrued rights and liabilities of the said parties . . ."
ordered by the Supreme Court in its Resolution of December 1, 1993 (p. 7, rec.),
T-2 and that the Court will proceed to do what it is required to do on the basis of the
documents submitted by the North Philippine Union Mission of the Seventh Day
T-3 Adventists only.17

T-4 Ms. Angelo submitted her Report dated January 31, 1995, to which the appellate court
required the parties to comment on.18
U Price List of Memorial Lots of MANILA MEMORIAL PARK
EGMPC took exception to the appellate court's having considered it to have waived its right
to present documents.19Considering EGMPC's arguments, the court set a hearing date
U-1 effective June 1, 1991. where NPUM would present its documents "according to the Rules [of Court], and giving
the private respondent [EGMPC] the opportunity to object thereto."20
U-2
Subsequently, NPUM asked for and the appellate court issued a subpoena duces tecum
U-3 and subpoena ad testificandum to EGMPC's President, Mr. Gabriel O. Vida requiring him to
produce the following documents.
U-4V Price List of Memorial Lots of MANILA MEMORIAL PARK
1. Copies of Deeds of Sale corresponding to each memorial lot sold subject of
the Land Development Agreement between the parties;
V- effective November 2, 1991.

2. Lists of all memorial lots sold under or affecting the said Land Development
V-2 Agreement with an indication of the types/kinds of memorial lots and the
corresponding prices at which each was sold and the dates when each lot was
V-3 sold;

V-4 3. Lists of all the owners of the memorial lots affected by the Land Development
Agreement;
 4. Copies of all the annual audits made by the external accounting firm pursuant
to provision (a) of the Land Development Agreement.
5. Copies of all audited financial statements of ETERNAL from 1978 to the
present;
6. Copies of all monthly accounting reports of all sales and cash collections
regarding all the memorial lots sold under the Land Development Agreement
pursuant to provision (e) of the said Land Development Agreement;
7. The name/s of the Depository/Trustee Bank/s which acted as the
depository/trustee of funds collected by ETERNAL pursuant to provision (f) of the
subject Land Development Agreement.
8. All other accounting books and records on all transactions affecting all the
memorial lots covered under the Land Development Agreement.
9. List of all the corporate officers and employees of ETERNAL from 1975 up to
the present whose duties and responsibilities involved the recording of all sales
and other transactions and the safekeeping of such records relating to the sale of
the memorial lots subject of the Land Development Agreement.21
NPUM also filed a Request for Admission of the documents it had earlier submitted to the
Court annexed to the Summary of Sales and Total Amounts Due, addressed to Mr.
Vida.22 EGMPC, however, filed a Denial to the Request for Admission, alleging that it was
without knowledge or information of the documents, except for the Land Development
Later, NPUM filed a second Request for Admissions addressed to Mr. Vida. He was asked
Agreement of October 6, 1976.23
to make the following admissions:
NPUM then reiterated its request for and was granted by the appellate court, a subpoena
duces tecum and subpoena ad testificandum, this time addressed to the Chief of the
Records Division of EGMPC.24 NPUM further filed a Motion for Production, Inspection and
Photocopying of Documents and Books of Accounts of EGMPC, in particular:
1. Master Development and/or Operational Plan of Eternal Gardens for Memorial
Park at Baesa, Metro Manila subject of the Land Development Agreement.
2. Inventory of memorial lots developed and sold by Eternal under the Land
Development Agreement and the type of memorial lots developed and sold, i.e.,
whether lawn type, family estate type, garden estate type and the number of
each type developed and sold.
3. List of buyers and owners of memorial lots sold under the Land Development
Agreement and the corresponding sales contracts.
4. Records of number of memorial lots sold on installment terms, and those sold
on cash basis.
5. Sales and marketing records as to the number of memorial lots effected by the
Land Development Agreement sold in each of the following years: 1978, 1979,
1980, 1981, 1982, 1983, 1984, 1985, 1986, 1987, 1988, 1989, 1990, 1991, 1992,
1993, 1994 and 1995.
6. Monthly accounting records of collections from sales of memorial lots under
the Land Development Agreement from 1978 to 1995, inclusive.
7. Year-end audited financial statements of Eternal Gardens Memorial Park
Corporation from 1977 to 1995, inclusive.
8. Price list of Eternal's memorial plot lots affected by the Land Development
Agreement covering the period 1977 to 1995.
9. List of accredited and/or authorized agents, brokers, salesmen, and sales
counselors of Eternal from 1977 to 1995 and their addresses.
10. Records of collections representing 10% of the gross collections on each
memorial lot sold under the Land Development Agreement, for perpetual care
fees and constituting a trust fund to secure perpetual care of the memorial park
affected by the Land Development Agreement.25
1. That the auditor retained by Eternal Gardens Memorial Park Corp. to audit and
examine its financial position, and which prepared Eternal's audited financial
statements, for the years 1982, 1983 and 1984 was the auditing and accounting
firms of Josue, Arceo & Co., CPAs, with office at the 2nd Floor, Roman R. Santos
Building, Plaza Goeti, Manila.
2. That the auditor retained by Eternal Gardens Memorial Park Corp. to audit and
examine its financial position, and which prepared Eternal's audited financial
statement for the Fiscal years 1985 and 1986 was Roseller A. Ditangco, CPA,
with offices at No. 6, Plata Street, Tugatog, Malabon, Metro Manila.
3. That the auditor retained by Eternal Gardens Memorial Park Corp. to audit and
examine its financial position, and which prepared Eternal's audited financial
statements for the Fiscal years 1987, 1988, 1989, 1990, 1991, 1992 and 1993,
was Bernardino T. Dela Cruz, CPA with offices at No. 9, Interior II, K-8th Street,
Kamuning, Quezon City.
 4. That true and faithful copies of the audited financial statements of Eternal
Gardens Memorial Park Corp. for the Fiscal years 1981 to 1993, inclusive,
specifically those referred to in paragraphs 1, 2 and 3 of this Request, were
submitted to and filed with the Bureau of Internal Revenue as an integral part of
Eternal's Income Tax Returns, as well as with the Securities and Exchange
Commission in compliance with the reportorial requirements of the said
Securities and Exchange Commission.
i. Annex "I" (inclusive of sub-markings from Annexes "I-1'' to "I-8") is the audit report
prepared by Bernardino T. Dela Cruz, CPA, of the financial position of Eternal Gardens
Memorial Park Corp. at 31 December 1992.
j. Annex "J" (inclusive of sub-markings from Annexes "J-1" to "J-7") is the audit report
prepared by Bernardino T. Dela Cruz, CPA, of the financial position of Eternal Gardens
Memorial Park Corp. at 31 December 1993.26

5. That each of the following documents, exhibited with and attached to this
Meanwhile, EGMPC failed to present the documents required by the subpoena. It further
request, are true and faithful copies of the original and genuine documents, thus:
filed a Denial and/or Objection to the Requests for Admission on the ground that it could not
make comparison of the documents with the originals thereof.27
a. Annex "A" (inclusive of sub-markings from Annexes "A-1" to "A-9") is the audit report
prepared by the accounting firm of Josue, Arceo & Co., (CPAs), of the financial position of
On November 10, 1995, Ms. Angelo submitted her Report.28
Eternal Gardens Memorial Park Corp. at 31 December 1982;

In a Resolution dated January 15, 1996, the Court of Appeals approved the report of Ms.
b. Annex "B" (inclusive of sub-markings from Annexes "B-1" to "B-3") is the audit report
Angelo, finding this "to be a just and fair account of what Eternal Gardens and Memorial
prepared by the accounting firm of Josue, Arceo & Co., (CPAs) of the financial position of
Park owes to the petitioner North Philippine Union Mission of the Seventh-Day Adventists,
Eternal Gardens Memorial Park Corp. at 31 December 1983;
and accordingly orders the former to pay and turn over to the latter the amounts of
P167,065,195.00 as principal and P167,235,451.00 in interest . . ."29
c. Annex "C" (inclusive of sub-markings from Annexes "C-1" to "C-6") is the audit report
prepared by the accounting firm of Josue, Arceo & Co. (CPAs) of the financial position of
EGMPC filed a Motion for Reconsideration, which was denied for lack of merit by the
Eternal Gardens Memorial Park Corp. at 31 December 1984;
appellate court in a Resolution dated April 12, 1996.30

d. Annex "D" (inclusive of sub-markings from Annexes "D-1" to "D-3") is the audit report
prepared by Roseller A Ditangco, CPA of the financial position of Eternal Gardens
Memorial Park Corp. at 31 December 1985;
e. Annex "E" (inclusive of sub-markings from Annexes "E-1" to "E-8") is the audit report
prepared by Bernardino T. Dela Cruz, CPA; of the financial position of Eternal Gardens
Memorial Park Corp. at 31 December 1987;
f. Annex "F" (inclusive of sub-markings from Annexes "F-1" to "F-7") is the audit report
prepared by Bernardino T. Dela Cruz, CPA, of the financial position of Eternal Gardens
Memorial Park Corp. at 31 December 1989;
g. Annex "G" (inclusive of sub-markings from Annexes "G-1" to "G-9") is the audit report
prepared by Bernardino T. Dela Cruz, CPA, of the financial position of Eternal Gardens
Memorial Park Corp., at 31 December 1990;
h. Annex "H" (inclusive of sub-markings from Annexes "H-1" to "H-13") is the audit report
prepared by Bernardino T. Dela Cruz, CPA, of the financial position of Eternal Gardens
Memorial Park Corp. at 31 December 1991;
On April 29, 1996, EGMPC filed a Motion for Extension of Time to File Petition
for Certiorari and Prohibition with this Court, docketed as G.R. No. 124554, seeking the
review of the appellate court's Resolutions dated January 15, 1996 and April 12,
1996.31 The Court granted this motion for extension,32 and on May 27, 1996, EGMPC filed
the instant petition.33
It appears, however, that in a Report dated May 31, 1996 in CA-G.R. SP No. 04869, the
Court of Appeals informed the parties that its January 15, 1996 Resolution had attained
finality considering the following:
The respondent Eternal Gardens Memorial Park received copy of the [January
15, 1996] resolution on January 22, 1996 and, after twelve (12) days from its
receipt or on February 2, 1996, filed a motion for reconsideration thereof. This
Court denied Eternal Garden's motion for reconsideration in a resolution
promulgated April 12, 1996, a copy of which it received on April 18, 1996. After
eleven (11) days from receipt of the resolution denying its motion for
reconsideration, or on April 12, 1996 (sic), it filed a motion for extension to file a
petition for review with the Supreme Court.
It is quite clear that after the denial of its motion for reconsideration, Eternal
Gardens had only three (3) days left of the reglementary period to file a petition
for review, or only up to April 12, 1996, but Eternal Gardens allowed that period
to lapse, and then filed its motion to extend to file its petition on April 29, 1996
 which is eight (8) days beyond the period of finality of the resolution sought to be
reviewed by the Supreme Court. Consequently, the resolution of January 15,
1996 had attained finality before Eternal Gardens filed its motion to extend before
this Honorable Court.34
Entry of judgment was made on June 6, 1996.35
Following the above incidents, on June 20, 1996, EGMPC filed in G.R. No. 73794 an
"Opposition and/or Comment to the Report of the Court of Appeals dated 31 May 1996"
with the prayer:
. . . to disregard and nullify the Report of the Court of Appeals dated May 31,
1996 and at the same time allow or tolerate the First Division of the Honorable
Supreme Court to resolved (sic) the petitioner Eternal Gardens Petition
for Certiorari against the Court of Appeals and NPUM with G.R. No. 124554.36
In retort to EGMPC's opposition, also in G.R. No. 73794, NPUM filed on June 11, 1996 an
Omnibus Motion (a) to dismiss the petition in G.R. No. 124554, or (b) to consolidate the two
petitions, and (c) for the issuance of a writ of execution. NPUM contended that as a
consequence of the appellate court's resolutions in CA G.R. SP No. 04869 having attained
finality, a writ of execution may be issued under G.R. No. 73794, and EGMPC could no
longer file a separate petition such as that docketed as G.R. No. 124554. 37
In its Comment filed on July 17, 1996, in G.R. No. 124554, NPUM prayed for the denial of
the petition for "being frivolous and dilatory", citing EGMPC's violation of Circular No. 04-94
on forum shopping, in reference to its (EGMPC's) pleadings filed in G.R. No. 73794. NPUM
pointed out that the reliefs sought by EGMPC in G.R. No. 124554 were "identical" to those
in its Opposition And/Or Comment to the Report of the Court of Appeals dated 31 May
1996 filed in G.R. No. 73794.38
On December 26, 1996, the Regional Trial Court of Kalookan City, Branch 120, issued an
Order in the case of origin, Civil Case No. 9556, granting NPUM's motion for execution of
judgment.39 A writ of execution was subsequently issued by that trial court on January 7,
1997.40
Because of the trial court's issuance of the writ of execution, on January 10, 1997, EGMPC
filed in G.R. No. 124554 an Urgent Motion for Restraining Order And/Or Injunction and
Motion for Contempt of Court. EGMPC prayed that "pending resolution of the petition to
promptly issue a restraining order and/or injunction against Judge Jaime Discaya of the
RTC Br. 120 of Kalookan City in Civil Case No. 9556 . . ."41
EGMPC also filed in G.R. No. 73794 on January 17, 1997 an Urgent Motion for Restraining
Order And/Or Injunctive Relief with the same prayer as in its Urgent Motion filed in G.R. No.
124554.42
In G.R. No. 124554, the Court granted EGMPC's motion and issued a temporary
restraining order against the trial court's order dated December 16, 1996 and writ of
execution dated January 7, 1997.43
In a Resolution dated January 27, 1997 issued in G.R. No. 73794, the Court denied for lack
of merit EGMPC's Urgent Motion.44
The threshold question here is whether Eternal Gardens timely filed its petition for review
from the Court of Appeals' January 15, 1996 and April 12, 1996 Resolutions.
We restate the material dates thus:
EGMPC received a copy of the January 15, 1996 Resolution on January 22, 1996. Twelve
days from such receipt, or on February 2, 1996, EGMPC filed its Motion for
Reconsideration. On April 18, 1996, EGMPC received the appellate court's Resolution of
April 12, 1996 denying its Motion for Reconsideration. On April 29, 1996, or eleven days
from its receipt of the denial of its motion for reconsideration, EGMPC filed a motion for
extension of time to file its "Petition for Certiorari and Prohibition" and concurrently paid the
legal fees.
We find that EGMPC's Motion for Extension of Time to File a Petition for Review was timely
filed on April 29, 1996, such motion having been filed eleven days from receipt of the
appellate court's denial of its motion for reconsideration Supreme Court Circular No. 10
dated August 28, 1986 on modes and periods of appeal provides thus.
(5) APPEALS BY CERTIORARI TO THE SUPREME COURT
In an appeal by certiorari to this Court under Rule 45 of the Rules of Court,
Section 25 of the Interim Rules and Section 7 of PD 1606, a party may file a
petition for review on certiorari of the judgment of a regional trial court, the Court
of Appeals or the Sandiganbayan within fifteen days from notice of judgment or of
the denial of his motion for reconsideration filed in due time, and paying at the
same time the corresponding docket fee (Section 1 of Rule 45). In other words, in
the event a motion for reconsideration is filed and denied, the period of fifteen
days begins to run again from notice of denial (See Codilla vs. Estenzo, 97
SCRA 351; Turingan vs. Cacdad, 122 SCRA 634).
A motion for extension of time to file a petition for review on certiorari may be
filed with the Supreme Court within the reglementary period, paying at the same
time the corresponding docket fee.45
While the petition filed by EGMPC purports to be one of certiorari under Rule 65 of the
Revised Rules of Court, we shall treat it as having been filed under Rule 45, considering
that it was filed within the 15-day reglementary period for the filing of a petition for review
on certiorari. As the Court stated in Delsan Transport Lines, Inc. vs. Court of Appeals,
where the Court was liberal in its application of the Rules of Court in the interest of justice:
"It cannot . . . be claimed that this petition is being used as a substitute for appeal after that
remedy has been lost through the fault of petitioner. Moreover, stripped of allegations of
'grave abuse of discretion,' the petition actually avers errors of judgment rather than of
jurisdiction, which are the subject of a petition for review."46
The May 31, 1996 Report of the Court of Appeals informed the parties that the January 15,
1996 Resolution had attained finality, erroneously applying the rule applicable to petitions
for review filed with the Court of Appeals from a final judgment or order of the regional trial
court.47
We cannot and do not in the instant case vacate and set aside the May 31, 1996 Report.
The report is not before this Court on review. We must however, within the milieu of this
case, regard the report impertinent by the fact of EGMPC having timely filed its motion for
extension of time to file its petition on April 29, 1996.
We also consider that the consequences of the issuance of the report, that is, the entry of
judgment in the appellate court and the writ of execution issued by the trial court in the case
of origin, inextricably affect the resolution of the instant case. Hence, the rationale for our
restraining order of January 15, 1997.
We next consider whether, as asserted by NPUM, EGMPC's petition must be summarily
dismissed on the ground of forum shopping. NPUM points to EGMPC's Opposition and/or
Comment to the Report of the Court of Appeals dated May 31, 1996 filed in G.R. No.
73794 vis-a-vis its Petition for Review in the instant case, and the two Urgent Motions for
the Issuance of a Temporary Restraining Order filed in G.R. No. 73794 and in the instant
case.
NPUM asserts that the reliefs sought by EGMPC in its opposition and in its petition are
"identical" We disagree. The petition here seeks the setting aside of the Court of Appeals'
January 1, 1996 and April 12, 1996 Resolutions.
The Opposition in G.R. No. 73794, on the other hand, sought the nullification of the May 31,
1996 Report and as a corollary, for the instant case to be "allowed or tolerated".
The opposition and the petition do not seek to provoke from this Court the resolution of a
same issue, the evil which Revised Circular No. 28-91 and its companion Administrative
Circular No. 04-94 address. We read the opposition in G.R. No. 73794 as a complement to
the petition here, to which it makes categorical and express reference. 48 We consider it as
merely a matter of discourse and emphasis that Eternal Gardens reiterated its case in the
later pleading.
Regarding the motions for the issuance of a temporary restraining order filed by EGMPC on
January 10, 1997 in the instant case and on January 17, 1997 in G.R. No. 73794, we
consider the exigency which may have prompted EGMPC to file the motions in both cases.
The trial court in the case of origin, acted favorably on NPUM's motion for the issuance of a
writ of execution, the basis of which is the alleged finality of the appellate court's January
15, 1996 Resolution. The trial court ruled that the instant case denominated as an original
action for certiorari "does not interrupt the course of the principal action [G.R No. 73794]
nor the running of the period in the proceeding."49 To not stay the execution considering the
trial court's ratiocination would render moot EGMPC's remedy in the instant case.
NPUM also contends that EGMPC has committed perjury, pointing to the certification under
oath filed by EGMPC, through its President Gabriel O. Vida, where he states "that there is
no other case pending in any court or tribunal in the Philippines, with the same issues in
this case . . ."50
Again, we disagree. It does not appear that EGMPC was to pursue the two cases
concurrently. EGMPC filed this new petition, and did not assail the appellate court's
resolution under G.R. No. 73794, as in fact the Court has informed the parties that no
further pleadings were to be entertained in G.R. No. 73794 after remand to the Court of
Appeals.51
EGMPC next asserts that the Resolution of the Third Division dated December 1, 1993
ordering the remand to the Court of Appeals of the case for accounting "changed, modified
and reversed" the September 19, 1988 Decision of the Second Division which ordered the
remand of the case to the trial court. EGMPC contends that the Third Division "is in
violation of the constitution which provides that no doctrine or principle of law laid down in a
decision en banc or in division may be changed modified or revised by the Court except
when sitting en banc."52
EGMPC had raised the very same issue in its Motion for Reconsideration53 of the
December 1, 1993 Resolution. The Court, in its Resolution dated February 14, 1994 had
denied the motion with finality for lack of merit.
Needless to say, the argument raised by EGMPC is utterly without consequence. At the
time the September 19, 1988 Decision was rendered, the two civil cases interpleader
and quieting of title were still pending. What was brought before the appellate courts and
subject of G.R. No. 73794 were mere incidents, and not the judgment of the trial court;
thus, the remand to the trial court for further proceedings on the merits of the case. The
December 1, 1993 Resolution was issued after the issue of ownership of the subject parcel
of land was already resolved with finality. What was left for the courts to do was to have an
accounting done of the rights and liabilities of EGMPC and NPUM, thus, the remand to the
Court of Appeals.
We now consider the merits of the case.
The gist of EGMPCs' contention is that it owes the amount of only P35,000,000.00 less
advances and not P167,065,195.00 as principal and P167,235,451.00 in interest as
computed by Court Accountant Carmencita C. Angelo.54
EGMPC first contends that the appellate court, in appointing an accountant to make the
computations, delegated judicial function, such as to determine the admissibility of
evidence.55
Under the Revised Internal Rules of the Court of Appeals, that court has the
d. Authority to receive evidence and perform any and all acts necessary for the
resolution of factual issues raised in cases falling within its original jurisdiction.
For the proper disposition of the case, the appellate court, under the above-quoted
authority, designated an accountant "to receive, collate and analyze the documents to be
filed by the parties."56
No judicial function was exercised by Ms. Angelo. She was not asked to rule on the
admissibility of the evidence. The documents were duly marked during the hearing of July
19, 1995, for the consideration of the appellate court, which alone had the power to decide.
Ms. Angelo's role in the proceedings was to prepare a report, which she did, culling from
the documents submitted to her. While it may be true that the report, when adopted by the
appellant court, became part of its decision, judicial power lies, not with the official who
prepared the report, but with the court itself which wields the power of approval or rejection.
Under American jurisprudence, the rule is thus
It would seem on principle that a commissioner, master or referee appointed by a
court to aid it in the adjudication of a particular case is not a court when
performing the functions assigned to him, although the court may adopt his
conclusions in its decision . . . It has, for instance, been held that a statute giving
the supreme court of a state the power to appoint commissioners thereof whose
duty shall be, under such rules and regulations as the court may adopt, to assist
it in the performance of its functions, and in disposing of undetermined cases
before it, is not unconstitutional or open to the objection that the commissioners
are vested with judicial power, since the commissioners merely report facts found
and conclusions reached, and the court retains the power to decide which is the
only judicial power. It has also been pointed out that a chancellor does not, by
referring a matter to a commissioner, delegate his judicial function to him. The
commissioner is appointed for the purpose of assisting the chancellor, not to
supplant or replace him, and the findings of a commissioner are merely advisory
and not binding on the court.57
EGMPC also contends that it was deprived of due process because it "was not given
reasonable opportunity to know and meet the claim of [NPUM] as its counsel was not able
to cross-examine the American Accountant of [NPUM].58
The contention is without merit.
Contrary to EGMPC's claim, it was given every opportunity to present its case. At the
outset, the parties were asked by the appellate court to submit documents for accounting.
NPUM made full utilization of the modes of discovery, asking the appellate court to
subpoena documents and testimonies, and requesting admissions from EGMPC regarding
documents it (EGMPC) had in its possession, documents which emanated from the
corporation itself, and either sent to NPUM as communiques, such as the Letter of Mr. Vida
dated April 4, 1980 to Pastor Bienvenido Capule of NPUM stating inter alia that for 1978,
EGMPC sold 2,805 memorial lots and that during the first quarter of 1980 the corporation
sold 2,418 lots, totalling 10,730,59 or documents available to the general public, as in the
Price Lists, or filed with government offices, specifically the Securities and Exchange
Commission and the Bureau of Internal Revenue.
EGMPC cannot claim that it was denied the forum to confer with NPUM and NPUM's
accountant. The appellate court had arranged conferences for the parties and their
accountants to allow them to discuss with each other and with Ms. Angelo. Even Ms.
Angelo, in her Letter dated November 10, 1995 covering her second and final report spoke
of such a conference, to wit:
In compliance with your instructions in the last conference-meeting with the party-
litigants in Case CA-G.R. No. SP No. 04869 held last August 30, 1995, the
undersigned together with the representatives of the North Philippine Union
Mission (NPUM) and the Eternal Gardens Memorial, Inc. had a discussion on the
computations made by each of the party of the amount due to the North
Philippine Union Mission which were submitted to the Court.60
It was not even imperative that EGMPC cross-examine the accountant who prepared
EGMPC's computation, and there was no denial of due process without such cross-
examination. This computation was merely to aid Ms. Angelo, who was to make her own
independent computation from the documents submitted to her.
EGMPC also asserts that "substantially if not all records, documents and papers submitted
by the private respondent NPUM to the Court's Accountant which eventually became the
basis of the report and Resolution of January 15, 1996 of the public respondent Court, were
not genuine and not properly identified by the persons who were supposed to have
executed the same including the alleged financial statement of Eternal Gardens allegedly
issued by the Securities and Exchange Commission (SEC)."61
From the transcript of stenographic notes of the proceedings in the appellate court, we find
that EGMPC acquiesced to the use of the documents submitted by NPUM, including the
financial statements, even actively participating in the discussion of the contents of such
documents. EGMPC's main objection was only on how the entries in these documents
were to be interpreted, for example, on how payments towards the perpetual care fund
would be credited.62 EGMPC did not object even when counsel for NPUM read into the
records the contents of the documents.63
It even appears that after Ms. Angelo came up with her first report, EGMPC's counsel
expressed that it was "amenable to that computation."64 In that report, Ms. Angelo had
stressed that "[s]ince the Eternal Gardens Memorial Park, Inc. did not submit to the Court
any documents pertaining to the computations of the 40% share of the North Philippine
Union Mission of the Seventh Day Adventists, then we have no other recourse but to base In the light of the willingness, expressly made before the
the computation on the available figures and on the other documents as presented by the court, affirming the complaint filed below, that the private
petitioner [NPUM]."65 respondent (MEMORIAL) will pay whatever is due on the
Land Development Agreement to the rightful owner/owners,
there is no reason why the amount due on subject
EGMPC lastly contends that it is not liable for interest. It claims that it was justified in
agreement has not been placed in the custody of the Court.
withholding payment as there was still the unresolved issue of ownership over the property
subject of the Land Development Agreement of October 6, 1976. 66
Under the circumstances, there appears to be no plausible reason for petitioner's
objections to the deposit of the amounts in litigation after having asked for the
The argument is without merit EGMPC under the agreement had the obligation to remit
assistance of the lower court by filing a complaint for interpleader where the
monthly to NPUM forty percent (40%) of its net gross collection from the development of a
deposit of aforesaid amounts is not only required by the nature of the action but
memorial park on property owned by NPUM. The same agreement provided for the
is a contractual obligation of the petitioner under the Land Development Program.
designation of a depository/trustee bank to act as the depository/trustee for all funds
collected by EGMPC.67 There was no obstacle, legal or otherwise, to the compliance by
EGMPC of this provision in the contract, even on the affectation that it did not know to As correctly observed by the Court of Appeals, the essence of an interpleader,
whom payment was to be made. aside from the disavowal of interest in the property in litigation on the part of the
petitioner, is the deposit of the property or funds in controversy with the court, it is
a rule founded on justice and equity: "that the plaintiff may not continue to benefit
Even disregarding the agreement, EGMPC cannot "suspend" payment on the pretext that it
from the property or funds in litigation during pendency of the suit at the expense
did not know who among the subject property's claimants was the rightful owner. It had a
of whoever will ultimately be decided as entitled thereto."
remedy under the New Civil Code of the Philippines to give in consignation the amounts
due, as these fell due.68 Consignation produces the effect of payment.69
The case at bar was elevated to the Court of Appeals on certiorari with
prohibitory and mandatory injunction. Said appellate court found that more than
The rationale for consignation is to avoid the performance of an obligation becoming more
twenty million pesos are involved; so that on interest alone for savings or time
onerous to the debtor by reason of causes not imputable to
deposit would be considerable, now accruing in favor of the Eternal Gardens.
him.70 For its failure to consign the amounts due, Eternal Gardens' obligation to NPUM
Finding that such is violative of the very essence of the complaint for interpleader
necessarily became more onerous as it became liable for interest on the amounts it failed
as it clearly runs against the interest of justice in this case, the Court of Appeals
to remit.
cannot be faulted for finding that the lower court committed a grave abuse of
discretion which requires correction by the requirement that a deposit of said
Notably, EGMPC filed an interpleader action, "the essence of which, aside from the amounts should be made to a bank approved by the Court.
disavowal of interest in the property in litigation on the part of the petitioner, is the deposit of
the property or funds in controversy with the court." Yet from the outset, EGMPC had
Petitioner would now compound the issue by its obvious turnabout, presently
assailed any court ruling ordering the deposit with a reputable bank of the amounts due
claiming in its memorandum that there is a novation of contract so that the
from it under the Land Development Agreement. In G.R. No. 73794, 71 the Court made the
amounts due under the Land Development Agreement were allegedly
following discourse on the disavowal of EGMPC of its obligations, thus:
extinguished, and the requirement to make a deposit of said amounts in a
depository bank should be held in abeyance until after the conflicting claims of
In the case at bar, a careful analysis of the records will show that petitioner ownership now on trial before Branch CXXII RTC-Caloocan City, has finally been
admitted among others in its complaint in Interpleader that it is still obligated to resolved.
pay certain amount to private respondent; that it claims no interest in such
amounts due and is willing to pay whoever is declared entitled to said amounts.
All these notwithstanding, the need for the deposit in question has been
Such admissions in the complaint were reaffirmed in open court before the Court
established, not only in the lower courts and in the Court of Appeals but also in
of Appeals as stated in the latter court's resolution dated September 5, 1985 in
the Supreme Court where such deposit was required in the resolution of July 8,
C.A. G.R. No. 04869 which states:
1987 to avoid wastage of funds.

The private respondent (MEMORIAL) then reaffirms before

Even during the pendency of G.R. No. 73794, EGMPC was required to deposit the accruing
the Court its original position that it is a disinterested party
interests with a reputable commercial bank "to avoid possible wastage of funds" when the
with respect to the property now the subject of the
case was given due course.72 Yet, EGMPC hedged in depositing the amounts due and
interpleader case.
made obvious attempts to stay payment by filing sundry motions and pleadings.
We thus find that the Court of Appeals correctly held Eternal Gardens liable for interest at
the rate of twelve percent (12%). The withholding of the amounts due under the agreement
was tantamount to a forbearance of money.73

CONSIDERING THE FOREGOING, the Court Resolved to DENY the petition. The
Resolutions dated January 15, 1996 and April 12, 1996 are AFFIRMED. The temporary
restraining order issued by this Court on January 15, 1997 is LIFTED.